Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, No. DN142548, Randall W. Magnuson, Commissioner.
HUFFMAN, J.
In a March 2009 judgment, the family court granted legal separation and made property settlement orders, pursuant to the petition of respondent Eliza Afshari-Kashanian (Respondent) and her former husband, appellant Hormoz Sheikh (Appellant). (Fam. Code, § 4330; all statutory references are to the Family Code unless noted.) The court reserved issues of child and spousal support. This appeal concerns the spousal support award made in a October 2, 2009 postjudgment order, issued pursuant to an order to show cause on Appellant's request for modification. In that order, the trial court kept in place the original amount of monthly spousal support that Appellant was required to pay, $1,099, as ordered at the time of the parties' separation in 2006. At the same October 2009 hearing, the family court made related findings reducing Appellant's child support obligation, on the basis that Appellant had been unemployed since June 2009.
On appeal, Appellant argues the record does not support the current continuation of the original spousal support order, but he does not challenge the child support amount. Specifically, Appellant contends the family court abused its discretion and erroneously failed to consider all of the required statutory factors for modification of spousal support, including his ability to pay. (§ 4320.) We conclude the court did not adequately apply all the relevant section 4320 factors and the matter must be returned to the family court for a new exercise of discretion in determining the proper amount of spousal support.
The local Department of Child Support Services (DCSS) was a party at the trial court level, at the request of Respondent, after she had difficulty enforcing support orders. As a respondent served with the notice of appeal, DCSS substituted in the California Attorney General's Office for purposes of the appeal. DCSS has not filed a respondent's brief and did not participate in oral argument.
FACTUAL AND PROCEDURAL BACKGROUND
A. Background; Legal Separation Judgment
Appellant and Respondent were married in Iran on April 4, 1994, but by May 2006, they were separated and living in the United States (a 12-year marriage). At the time of separation, they had one minor child, born May 15, 2001. They all formerly lived in Sweden, where Appellant worked as a medical doctor, and then came to the United States when Appellant received a fellowship for medical research in Michigan. After the parties separated, in July 2007, Appellant received a fellowship for medical research at UCLA in California. By that time, Respondent was already living in California with the child.
We disregard various contentions in the briefs regarding whether Respondent "abducted" the minor child from Sweden to the U.S., before separation, as those issues were never resolved and are not material to the support issues on appeal.
After the parties separated, Respondent started working in retail and then trained as a phlebotomist, and is employed as such, as well as being a full-time student in the health care field. Appellant has attempted to pass the U.S. medical licensing exam, but the record does not show whether he has done so. His fellowship ended by June 2009, and he was unemployed at the time of the subject October 2, 2009 order.
Regarding support, the family court made temporary orders October 30, 2006 (effective August 1, 2006), based on factual findings as follows. Appellant had a seven percent time share with the minor child and filed taxes individually; his gross earnings were $3,750; and guideline support was $933 for child support. The spousal support he was to pay to Respondent was set at $1,099. At that time, Respondent's gross earnings were $2,997 a month, with a tax filing status of head of household and two exemptions (with her income adjusted for union dues and health insurance; we need not repeat any references to that adjustment, nor the tax filing statuses, which remained constant).
At a settlement conference held in August 2007, the parties reached a property agreement that Appellant would pay Respondent an equalizing payment of $15,000. The family court issued a legal separation judgment March 12, 2009, formalizing that settlement agreement, and confirming that the issues of child and spousal support and support arrearages were under the jurisdiction of the court handling the DCSS calendar (the family support division, or FSD). Additionally, the court issued a supplemental judgment on reserved issues regarding custody and visitation for the minor child.
Appellant apparently filed a modification request regarding support in May 2007, but due to problems with service, he obtained a new order to show cause for modification in November 2007, with a hearing date of January 2008 in the FSD. Several hearings were held and continuances were granted through the time of the legal separation judgment March 12, 2009. Thereafter, the parties continued to litigate support, including several issues not directly involved here, such as Appellant's request to reduce his monthly income to reflect certain job-related expenses at UCLA for which he was never reimbursed, before his employment was terminated in June 2009 (granted in part to adjust his gross income).
Appellant originally argued any order should have been retroactive to May 2007, when he allegedly filed his first request for modification, but he does not appear to pursue that request on appeal.
Appellant's unreimbursed expenses of $6,600 were addressed in the order, when the court partially reduced his gross income over a 24-month period, for support calculation purposes, pursuant to the DCSS calculation report. Another reimbursement issue regarding auto expenses is not contested here. This court granted Respondent's unopposed request to augment the record on appeal with documents that were before the family court, regarding reimbursement requests.
B. Postjudgment Proceedings on OSC for Modification of Support
Another issue that the parties have continually argued at the trial court, after judgment, and in this court, involves whether Respondent has pursued, in Iran, any property or support rights she may have under a dowry, known as a "Mahr." This court previously granted Respondent's unopposed request to augment the record on appeal with materials interpreting the meaning of that document. Throughout the litigation, the trial court has correctly ruled at numerous points in this proceeding that those property related issues were not properly before the California courts, and we decline to address them.
At continued hearings on May 8 and June 19, 2009, on the November 2007 modification request regarding support, the court ordered the parties to file further income and expense declarations and instructed the parties that the only relevant remaining issues were: (1) Appellant's request for reduction of spousal support to zero, effective February 2007, and (2) review of child support effective February 1, 2009. The attorney for DCSS provided calculations on the child support issues, served on the parties.
In support of Appellant's position that the court should reduce his spousal support to zero, he argued that the previous marital standard of living (1994-2006) had been that of students, living moderately. He continued to claim reimbursement for past educational expenses, although the court questioned whether he was also claiming some nonqualifying expenses (about $12,000 claimed, while only $6,600 was proven). Appellant complained that he did not consider himself married under the laws of the state of California, because Respondent established residency in California at the time their dispute started, and they never lived under the same roof in California. Appellant stated that he would accept a divorce in only one country.
At the hearing, Appellant mainly focused on Respondent's income, which he claimed was sufficient to maintain the previous marital standard of living, and in any case, he thought it must have been greater in amount than she was reporting, due to her family's help. Respondent had provided pay stubs and declarations about her expenses and income in 2009, but Appellant claimed she might have made more money in retail in 2008. In June 2009, his fellowship fell through due to funding issues, and Appellant began to receive only unemployment benefits of $1,855 per month, while his expenses were increasing. The court questioned whether Appellant was minimizing or suppressing his income, due to the skills that he had, although he still lacked a license in medicine. The court expressed doubt that any court would find it justifiable to terminate spousal support immediately, due to Respondent's ongoing responsibility for the minor child and the 12-year marriage.
In the respondent's brief filed in propria persona, Respondent refers to more recent income and expense declarations filed by Appellant in April 2010, and she claims he has new employment. As will be further explained, we cannot take events occurring past the time of the October 2009 order into consideration in our review of the trial court's order, which could resolve only the questions presented to it at that time.
At the conclusion of the hearing, the court again told the parties that any issues regarding the dowry in Iran could not be dealt with at the present time, but if there were problems, the parties could bring a later motion to modify support. The court questioned counsel for Appellant about why it should not be assumed, based on their history, that the parties were now maintaining a middle class standard of living. Counsel for Appellant complained that the parties had been separated for several years but there had never been a modification of the original spousal support order, and the Iranian litigation was burdensome. The court asked whether counsel wanted to set another hearing date on support, but neither party requested one, so the court took the matter under submission. The court also told the parties that the attorney for DCSS, who was also present at the hearing (but who did not take a position on spousal support, leaving those issues to the discretion of the court), could arrange with them if a new hearing date would be necessary on spousal support, but this was never done.
C. Findings and Order: Child Support
On October 2, 2009, the court issued its order on the submitted matters, utilizing the DCSS support calculation summaries, which had been provided to the parties. The court treated the OSC as presenting two relevant time periods for the calculation of a guideline child support order, i.e., before and after Appellant became unemployed on June 1, 2009. For the first period, the court made the following order: "Current support effective January 1, 2009 is as follows: Respondent's gross earnings are $3,844 per month, that is $3,429 taxable and $415 nontaxable. Father's... time share has been reduced to 1%. Mother's gross earnings are $2,997.... [¶] This order results in a guideline child support order of $743 effective January 1, 2009."
Next, effective June 1, 2009, Respondent's gross earnings were found to be reduced to $2,602 as she is no longer working overtime. Effective June 1, 2009, the court modified the child support order, finding: Appellant's gross earnings have been reduced to $1,855 in unemployment benefits, and for a further adjustment, that amount was reduced by $275 per month over a 24-month period (based on employment expenses for which he was supposed to be reimbursed and was not; $275 x 24=$6,600). Thus, the guideline child support amount was set at $372 during that 24-month period. (See fn. 4, ante.)
D. Findings and Order: Spousal Support
Next, regarding spousal support modification or termination, the court made this finding: "The parties were married for a period of 12 years and have been separated for approximately three years and three months. A Spousal Support Order was made in Family Court on or about October 30th, 2006 and is currently ordered in the amount of $1,099.00. The court will maintain the spousal support of $1,099.00 but would perhaps, in the future, consider reducing the support in stages at about the six year mark in the parties' post marriage period." This order does not distinguish between the periods utilized for the child support order, January-June 2009, and June 2009 onward.
Although the trial court correctly declined to rule on any issues involving the dowry, the order on appeal concludes with the following paragraph about that ongoing dispute: "Based upon correspondence translated here in the United States, the portion of marriage referring to the Dowry or Mahr in this matter was 1, 110 coins. As stated in a document which is correspondence that was translated from the Iranian language into English by a translator in Los Angeles, in 1997 the mother claimed 610 of the coins and also in the letter, the market value of the coins is alleged to be $220.00 per coin, amounting to a value of $134,200.00 dollars. The Court references the existence of the Dowry as it remains a point of contention between the parties." (Italics added.)
Appellant filed his notice of appeal and requested oral argument.
DISCUSSION
Appellant argues the court abused its discretion in determining not to modify his original spousal support obligation. Using the relevant factors set forth in section 4320, Appellant contends that only a small or zero amount of spousal support was justified by the previous student lifestyle during the 12 years of marriage, and in any case, enforcing the existing order would leave him destitute in light of his current unemployed status (e.g., if he now pays $372 child support plus $1,099 per month, out of an $1,855 unemployment check, he has $384 left). We set forth applicable standards and review the record.
I
STATUTORY STANDARDS
A. Spousal Support
An action for legal separation is considered to be essentially one for support. (11 Witkin, Summary of Cal. Law (10th ed. 2005) Husband and Wife, § 146, p. 209, citing Goodwine v. Superior Court (1965) 63 Cal.2d 481, 483.) The judgment of legal separation did not end the marriage, and support was subject to being modified or extended. (§ 4330, subd. (a); 11 Witkin, Summary of Cal. Law, supra, Husband and Wife, § 147, p. 210.) "On the other hand, the division of property is made in the same manner as in a dissolution action, and the judgment has the same binding effect. [Citation.]" (Ibid.)
This legal separation judgment deferred all support issues for later hearing. Under section 4330, subdivision (a), spousal support may be ordered in "an amount, for a period of time, that the court determines is just and reasonable, based on the standard of living established during the marriage, taking into consideration the circumstances as provided in [Section 4320]." Section 4332 anticipates that in setting spousal support, "the court shall make specific factual findings with respect to the standard of living during the marriage, and, at the request of either party, the court shall make appropriate factual determinations with respect to other circumstances." Such circumstances include " '[t]he needs of each party based on the standard of living established during the marriage, ' " and " ' "their respective abilities to meet these needs...." ' [Citation.]" (In re Marriage of Rosen (2002) 105 Cal.App.4th 808, 825-826 (Rosen).)
The factors set forth in section 4320 apply both in a court's initial determination of spousal support and in modifying spousal support. (In re Marriage of Kacik (2009) 179 Cal.App.4th 410, 422.) The factors are "mandatory guidelines" that the court must consider in determining or modifying spousal support. (In re Marriage of Kerr (1999) 77 Cal.App.4th 87, 93 (Kerr).)
Modification of spousal support is justified where the moving party has demonstrated a material change of circumstances, since the last order was issued, in the relevant factors that affect need and ability to pay. (In re Marriage of Dietz (2009) 176 Cal.App.4th 387, 396 (Dietz), citing In re Marriage of McCann (1996) 41 Cal.App.4th 978, 982.) The moving party carries the burden of proof to demonstrate a material change in circumstances. (In re Marriage of Bardzik (2008) 165 Cal.App.4th 1291, 1303 (Bardzik).) The trial court has broad discretion in determining if such material change in circumstances exists. (Kerr, supra, 77 Cal.App.4th at p. 93.) Such a change of circumstance finding is justified in the case of "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 West (2007) 152 Cal.App.4th 240, 246.)
B. Standard of Review
"Spousal support must be established according to the needs of both parties and ' " 'their respective abilities to meet these needs....' " ' [Citation.] Although we will imply necessary findings and resolve ambiguities in support of the Order, the findings --express or implied -- must be supported by substantial evidence." (Rosen, supra, 105 Cal.App.4th 808, 826.) No statement of decision was requested after the modification ruling, and any findings implied to support the order must be supported by the record. (In re Marriage of Ditto (1988) 206 Cal.App.3d 643, 647; § 3654.)
Upon proper consideration of the factors set forth in section 4320, abuse of discretion in a court's modification of a spousal support order occurs only when the court did not have substantial evidence on which to base its determination of material change in circumstances. (Dietz, supra, 176 Cal.App.4th at p. 398.) Such an abuse of discretion occurs where " ' "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 Bower (2002) 96 Cal.App.4th 893, 899, citing In re Marriage of Olson (1993) 14 Cal.App.4th 1, 7.)
The court has discretion to determine the weight of each factor in its section 4320 balancing analysis. (Inre Marriage of Cheriton (2001) 92 Cal.App.4th 269, 304 (Cheriton).) The court may not exercise its discretion arbitrarily, but must do so along "legal lines." (Ibid.) A court's failure to consider all of the relevant statutory factors, however, may in itself be considered an abuse of discretion. (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 479 (Smith).) Failure to consider each applicable factor is reversible error. (Cheriton, supra, at p. 304.) If the record does not support a conclusion that there existed a material change in circumstances, the court's discretionary ruling is subject to reversal on appeal for abuse of discretion. (Kerr, supra, 77 Cal.App.4th at p. 93.) To evaluate the exercise of discretion, we may consider only the record that was before the court as of the time of the ruling. (In re Zeth S. (2003) 31 Cal.4th 396, 413; see Reese v. Wal-Mart Stores, Inc. (1999) 73 Cal.App.4th 1225, 1237.)
II
APPLICATION OF THE SECTION 4320 FACTORS
A. Marital Standard of Living and Related Factors
We first discuss Appellant's arguments that these statutory factors were incorrectly applied, with regard to the marital standard of living factor. This circumstance is relevant under several portions of section 4320, which include subdivision (a), "[t]he extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage..., " and subdivision (c), "[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." Also, the court had to consider, under subdivision (d), "[t]he needs of each party based on the standard of living established during the marriage."
Marital standard of living is a "general description of the station in life the parties had achieved by the date of separation, " rather than a "mathematical standard." (Smith, supra, 225 Cal.App.3d at p. 491.) The marital standard of living serves as "a 'basis' or reference point" to determine reasonable need. (Id. at p. 484.) The importance of the marital standard of living factor may decrease as time passes since the date of separation. (In re Marriage of Shaughnessy (2006) 139 Cal.App.4th 1225, 1247-1248 (Shaughnessy).)
Section 4332 requires the trial court to make "specific factual findings with respect to the standard of living during the marriage, " whether findings were requested or not, and further provides that on request of either party, "the court shall make appropriate factual determinations with respect to other circumstances." (Ibid.) When the November 2007 order to show cause papers came before the court at the January 9, 2009 hearing, they did not set forth sufficient information about any of the factors relevant to spousal support under section 4320, and the court properly required the parties to provide current income and expense declarations and supporting documents, in order to proceed. At the February 20, 2009 hearing, the court maintained the existing spousal support.
By May and June 2009, Appellant was no longer focusing on an argument that during the marriage, the parties had been students living abroad, with a humble lifestyle, to justify a reduction in the amount of spousal support. Rather, his papers emphasized his belief that the issues regarding Iranian law were wrongfully being pursued by Respondent, and also, his recent unemployment and the lack of reimbursement of job expenses were additional factors to justify a reduction in spousal support. There was competing evidence that Respondent, as the supported party, was pursuing employment and education to fulfill the goal, pursuant to section 4320, subdivision (l), "that the supported party shall be self-supporting within a reasonable period of time." By the time of this ruling, the parties had been separated for about three years, and the marital standard of living could reasonably be evaluated by the trial court as becoming less important as time went on. (Shaughnessy, supra, 139 Cal.App.4th 1225, 1247-1248.)
At the hearing, the court commented that the parties were apparently managing to live a middle class lifestyle, which was a reasonable assessment of the evidence, and this impliedly amounted to a finding that the marital standard of living, considered alone, did not support a changed circumstance finding that would require or justify a spousal support reduction. Appellant does not show abuse of discretion in this particular respect. That is not the end of the inquiry, however.
B. Relationship of Child and Spousal Support Orders; Analysis
In addition to the marital standard of living, the closely related statutory factors of the parties' respective earning capacities, needs, and assets were exhaustively analyzed by the trial court, but apparently only with respect to child support, which consumes the bulk of the order. (§ 4320, subds. (a), (c), (d), (e).) However, other subdivisions of section 4320 also required the family court, in deciding the separate issue of whether to modify spousal support, to "consider all of the following circumstances, " including, as relevant here, "(k) [t]he balance of the hardships to each party, and "(n) [a]ny other factors the court determines are just and equitable."
Some subsections of section 4320 are not relevant to this appeal, including any "[d]ocumented evidence of any history of domestic violence." (§ 4320, subd. (i).)
Here, in justice and equity, such "other factors" obviously included the ongoing participation of DCSS in the support litigation, which had been requested by Respondent when Appellant did not make some of the child support payments. (§ 4320, subd. (n); see 11 Witkin, Summary of Cal. Law, supra, Husband and Wife, §§ 308, 310, pp. 410-412 discussing §§ 17304, 17400, 17500, subd. (a).) DCSS was also involved, to some extent, in the efforts to enforce the spousal support orders, although its counsel deferred to the trial court's discretion and has declined to take a position on that issue in this appeal.
On this record, it is difficult to reconcile the trial court's exhaustive analysis of the various factors affecting child support, including the distinction between the two time periods used, with the court's cursory statement that spousal support would be maintained at the existing level, but would be subject to reconsideration when another three years had passed, reaching the six-year mark in the postmarriage period. Section 4320, subdivision (f) allowed the court to consider the duration of the marriage in the spousal support calculation, and under subdivision (h), the court could consider "[t]he age and health of the parties." Nevertheless, those factors cannot control to the exclusion of the others, including under subdivision (k), "the balance of hardships to each party."
On that issue, in the child support order effective June 1, 2009, the court found Appellant's gross earnings had been reduced to $1,855 in unemployment benefits, and for a further adjustment, that amount was reduced by $275 per month over a 24-month period (based on employment expenses for which he was supposed to be reimbursed and was not). For arithmetic purposes, we can consider his gross income either to be the original $1,855 unemployment check, or that adjusted amount of $1,580 (since there was no showing he is actually paying anyone the credited amount of $275, but instead, it is recoupment of previous expenses).
In either of those income scenarios, the point is that he now has a $372 child support obligation, leaving him a lesser monthly balance to pay the original spousal support of $1,099 per month, if this order stands. Subtracting $372 from $1,855 leaves $1,483, or subtracting $372 from $1,580 leaves $1,208 per month for Appellant's own expenses. However, at the same time, when the court declined to modify spousal support, those monthly remaining income figures ($1,483 or $1,208) are reduced by $1,099, for a budget of either $384 or $109 left for Appellant's own living expenses. This is an unrealistic order that is not supported by the evidence.
Likewise, for the period between January 1 and June 1, 2009, Appellant still had a higher gross earning level ($3,844), and the guideline child support was set at $743. When the court declined to modify the spousal support, it incorrectly failed to take into account the two different dollar amounts of child support ordered during 2009, as part of the calculation of the parties' overall resources.
In any case, in reaching its conclusions about spousal support, the trial court was evidently relying solely on the length of the marriage. Alternatively, we can infer from the record that the trial court was critical of Appellant's evidentiary showing, because it seemed to suggest he was suppressing his income, without legitimate excuse, or that he was claiming reimbursement for some nonqualifying educational expenses. However, the court did not make any effort to impute income to the father, or require a vocational examination, or implement other means of determining how long his unemployment would last, to provide some evidence to support the ruling. (See Bardzik, supra, 165 Cal.App.4th 1291, 1303-1305; Dietz, supra, 176 Cal.App.4th at p. 398.)
Moreover, although the court offered to set another hearing date on support, apparently because of the ongoing disputes about the Iranian litigation, neither party accepted one, nor did the attorney for DCSS pursue the matter. We might infer from the record that the trial court understood that the record was incomplete on spousal support, but it decided to issue the order anyway. Unfortunately, the record is incomplete with regard to the necessary criteria and findings under sections 4320 and 4332, regarding earning capacity, needs of the parties, and their available assets, during all of the relevant time periods. The court never explained why spousal support should be treated differently from child support, nor how the different dollar figures could logically be added up. Under all the circumstances in this contested proceeding on spousal support, the court should have made "appropriate factual determinations with respect to other circumstances" in those particular respects, and without them, the record fails to substantially support the current order. (§ 4332.)
In light of the interaction of the factors enumerated in section 4320, to enable the court to best resolve competing claims on spousal support, and in light of the companion rulings on the child support issues, we cannot find that the current spousal support order represented a proper exercise of discretion. The matter must be returned to the trial court for further proceedings that will illuminate all of the relevant factors under the statute, without undue emphasis on the length of the marriage or the status quo.
DISPOSITION
The spousal support order is reversed with directions to vacate the order and enter a new order after such further proceedings as will enable the family court to properly evaluate all the statutory criteria under section 4320. Each party is to bear its own costs of appeal.
WE CONCUR: BENKE, Acting P. J., O'ROURKE, J.