Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, No. DN119833 Eugenia A. Eyherabide, Judge. Affirmed.
IRION, J.
Phoenix Anderson appeals the denial of her order to show cause for modification of permanent spousal support. She claims the trial court erred by: (1) failing to revise the spousal support findings made in the May 2003 judgment of dissolution; (2) failing to weigh each of the Family Code section 4320 factors; (3) taking into consideration that she has been self-supporting since separation, a factor not enumerated in section 4320; and (4) denying attorney fees, which she had not requested. We determine the challenges to the judgment are untimely and that the other challenges to the court's ruling are without merit. Accordingly, we affirm.
All further statutory references are to the Family Code unless otherwise specified.
I
FACTUAL AND PROCEDURAL BACKGROUND
Appellant elected to proceed on appeal without a reporter's transcript and with a limited clerk's transcript. (Cal. Rules Court, rule 8.120.) We granted respondent's motion to augment the record with the parties' declarations supporting and opposing the motion for spousal support modification. The statement of facts is drawn from the available record.
Phoenix married William K. Anderson in December 1989 and filed for dissolution of marriage in June 2001. Marital status terminated in March 2003, and a judgment on reserved issues was rendered in May 2003.
As is customary in family law appeals, for clarity we refer to the parties by their first names. In so doing we intend no disrespect. (In re Marriage of Smith (1990) 225 Cal.App.3d 469.)
A. May 2003 Judgment of Dissolution
In the judgment, the trial court made various findings regarding spousal support pursuant to Family Code section 4320. Included in those findings was that the marital standard of living had an anomaly period from 1990 to 1996, when the parties lived in Indonesia, because the parties did not pay taxes, had their living expenses paid, and earned substantially different incomes both before and after living in that country. Also included were court findings that William's income during the marriage consistently was in the mid- to high-$20,000 range; while living in Indonesia, the parties were able to amass savings, which artificially inflated their standard of living upon returning to the United States; the parties' lifestyle exceeded their income after returning to the United States; the parties' rental expenses were consistent with a lower middle class standard of living; there were no excessive gifts; and the parties' standard of living was lower middle class. The marketable skill of each party was considered, and the court determined the parties had similar annual incomes: Phoenix, $27,000; William, $23,544. The court did not award spousal support to either party, but reserved jurisdiction over the issue.
Section 4320 provides:
The judgment of dissolution was not appealed.
B. Spousal Support Modification Request
Approximately three years later, in November 2006, Phoenix filed an order to show cause for modification of spousal support. The apparent basis for the request was that Phoenix needed extensive dental work, lacked dental or health insurance, and could not contribute to her retirement. Phoenix asserted the judgment's findings regarding spousal support were legally erroneous and inequitable, and that she needed, and William had the ability to pay, spousal support.
William opposed the motion, contending that (1) Phoenix was attempting to relitigate issues and evidence presented at trial; (2) Phoenix's claimed financial need was the result of having quit a well-paying job with benefits to take a lower paying position with no benefits; and (3) there was employment available for which Phoenix was qualified and that would allow her to meet her financial needs. William also argued that the trial court determined the parties shared a lower middle class standard of living during marriage and that Phoenix was able to live at that level without spousal support.
After stating it had reviewed all of the factors enumerated in section 4320 —including but not limited to the marital standard of living, the marketability of each party's skills, and the fact that it had been seven years since separation and Phoenix had not received support during that time period — the family court denied Phoenix's request for modification of spousal support. It found Phoenix earned approximately the same amount as she had at the time of trial, and it determined that she failed to show a change of circumstances warranting a modification of the prior spousal support order. The court denied Phoenix's invitation to revise the judgment's findings regarding the parties' income and standard of living, determining it was "bound by the prior Court's ruling." Attorney fees were denied.
Phoenix appeals.
II
DISCUSSION
A. The Family Court's Refusal to Address the Spousal Support Findings of the May 2003 Judgment
Preliminarily, we address Phoenix's appellate contention that the family court erred in not revising the spousal support findings contained in the May 2003 judgment.
A request for spousal support modification may be granted only if the party seeking modification shows a material change of circumstances since the most recent order. (In re Marriage of Biderman (1992) 5 Cal.App.4th 409, 412-413 (Biderman); In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 575.) "The support order sought to be modified is conclusive as to circumstances existing when entered. Any attack on that order may therefore be made, if at all, only directly (by appeal, motion for new trial, timely set-aside motion, etc.). Once final, the prior order cannot be challenged by request for modification, since a dispute with the court's prior findings (e.g., failure to properly consider then-existing circumstances) is not tantamount to an allegation of change; rather, it is 'no more than an attempt to [impermissibly] collaterally attack the prior degree.' " (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2007) ¶ 17:151, pp. 17-36 to 17-37, citing In re Marriage of Hoffmeister (1987) 191 Cal.App.3d 351, 364, and In re Marriage of Mulhern (1973) 29 Cal.App.3d 988, 992.)
Here, Phoenix did not timely appeal the May 2003 judgment, and she may not collaterally attack the spousal support findings made therein in her spousal support modification request. Therefore, the family court committed no error.
B. The Family Court Did Not Abuse Its Discretion in Denying Phoenix's Request for Modification of Spousal Support
We next address Phoenix's claims that the family court erred in denying her request for modification of spousal support because it failed to consider the section 4320 factors; considered a factor not specifically included in section 4320; and denied attorney fees, which she had not requested.
1. Standard of Review
The propriety of an order modifying spousal support rests within the trial court's sound discretion. So long as the court exercised its discretion along legal lines, its decision will not be reversed on appeal if there is substantial evidence to support it. Reversal requires a clear showing of abuse of discretion. (Biderman, supra, 5 Cal.App.4th at p. 412.) An appellate court will not substitute its own judgment, but will interfere only if no judge could reasonably have made the order under consideration. (In re Marriage of Catalano (1988) 204 Cal.App.3d 543, 553; In re Marriage of Destein (2001) 91 Cal.App.4th 1385, 1393.)
Phoenix does not make a substantial evidence challenge, except to the findings of the May 2003 judgment, which we have determined are time-barred.
2. Phoenix's Claims of Error Are Without Merit
We first address Phoenix's claim that the family court abused its discretion in denying her spousal support modification request because it did not consider each of the section 4320 factors.
As with the fixing of an initial spousal support order, a court asked to modify spousal support must consider and weigh all of the appropriate spousal support factors under section 4320. (In re Marriage of Lynn (2002) 101 Cal.App.4th 120, 132.) Here, the family court order explicitly states: "The Court has reviewed all factors enumerated in Family Code §4320." Despite this language, Phoenix's argues "[t]here is no evidence in the record, as the record claims, of an independent, ground-up consideration, weighing of 'each' of the factors/circumstances, enumerated in Family Code [section] 4320."
We reject Phoenix's argument for two reasons. First, the order is presumed correct. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133 [on appeal we presume an order of the lower court is correct, "and all intendments and presumptions are indulged in favor of its correctness"].) Second, Phoenix has not informed us what section 4320 factor the trial court failed to consider, nor has she provided citation to the record or authority establishing her claim. (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239 [arguments not supported by adequate citations to the record need not be considered on appeal]; Paterno v. State of California (1999) 74 Cal.App.4th 68, 106 ["An appellate court is not required to examine undeveloped claims, nor to make arguments for the parties"].)
Phoenix's claim that the court abused its discretion by using a computer program intended to calculate temporary support to rule on her support modification request is similarly defective. We therefore reject the claim.
We next address Phoenix's claim that the family court abused its discretion in considering a factor not specifically enumerated in section 4320: the number of post-separation years without receipt of spousal support.
In considering a request for support, subdivision (n) of section 4320 allows the family court to consider "[a]ny other factors the court determines are just and equitable." Since one of the goals of permanent spousal support is that the supported spouse should become self-supporting within a reasonable period of time, it was reasonable for the court to consider that Phoenix had been self-sufficient, on approximately the same income, since separation. (In re Marriage of Schulze (1997) 60 Cal.App.4th 519, 525 ["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"].) The cited factor therefore was relevant to whether Phoenix demonstrated both the need for support and the material change of circumstance required to modify the prior support order. We therefore discern no abuse of discretion in the family court's consideration of this factor.
Finally, we address Phoenix's claim that the family court abused its discretion in denying her spousal support modification request as demonstrated by the fact it denied attorney fees when Phoenix had not requested fees.
We reject the claim. Phoenix did not include her moving pleadings in the record, and we have no way to determine whether she did or did not request fees. If she did not request attorney fees, as she asserts, she was not prejudiced by the family court's order. (Cal. Const., art. VI, § 13; Code of Civ. Proc., § 475 [no decision shall be reversed or affected by reason of any error unless it appears from the record that such error was prejudicial, and also that by reason of such error the appealing party sustained and suffered substantial injury, and that a different result would have been probable if such error had not occurred or existed. There shall be no presumption that error is prejudicial].) Phoenix had the burden of demonstrating prejudice. She has not done so, and her appellate claim is denied.
DISPOSITION
The order denying modification of spousal support is affirmed.
WE CONCUR: HUFFMAN, Acting P.J., HALLER, J.
"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 of any history of domestic violence, as defined in Section 6211, between the parties, 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 4325.
"(n) Any other factors the court determines are just and equitable."