Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. KD 039829, Donna Fields Goldstein, Judge.
Stephen Temko for Appellant.
Friedman & Friedman and Ira M. Friedman for Respondent.
ROTHSCHILD, J.
Fred Bland appeals from the portion of an order denying his motion to terminate or reduce his spousal support to Vianne Bland. Under the current support order Fred pays a fixed sum plus 20 percent of his income over his 1999 base salary with no cap on the amount of the payment. We conclude that the trial court abused its discretion in not capping support at $833 per month because the undisputed evidence showed that Vianne only needs $833 a month in addition to her earnings to maintain her marital standard of living. We modify the order to reflect that cap.
For clarity we refer to the parties by their first names with no disrespect intended.
FACTS AND PROCEEDINGS BELOW
Fred and Vianne were married in 1976 and separated in 1998. At the time they separated, each was 42 years old and they had two minor children, Chad, age 17, and Crystal, age 15. Fred was a captain in a fire department and Vianne was a public school teacher. Fred earned $121,631 in 1998, which included approximately $35,000 in overtime, and Vianne earned $35,481, or $2900 per month on an annual basis making their combined gross income $155,471.
The court entered a stipulated judgment of dissolution in 1999. The judgment required Fred to pay fixed monthly sums as child and spousal support plus a percentage of his income over his then gross monthly base salary of $7203. Specifically, the judgment provided for (1) spousal support of $280 plus 20 percent of Fred’s gross income in excess of $7203 (additional income) (2) child support for Crystal of $853 plus 10 percent of any additional income, and (3) child support for Chad of $512 plus 5 percent of any additional income. Pursuant to the order, Vianne received approximately a combined monthly total of $2600 in child and spousal support, which when combined with her earnings from teaching gave her a total of $5500 a month. The judgment contained no cap on the amount of Fred’s additional income that could be applied to spousal and child support. In stipulating to the judgment Fred and Vianne acknowledged that the “spousal support as provided is not adequate to permit [Vianne] to maintain the marital standard of living without child support[.]” By 2002, Fred’s child support obligations had ended.
Vianne received spousal and child support as follows:
Although child support is not taxable as income to the recipient and spousal support is, the tax consequences are not relevant to our analysis and, in any case, neither party has presented evidence of those tax consequences.
In 2006, Fred moved to terminate, reduce, or place a cap on Vianne’s spousal support. The evidence showed that Vianne’s gross income was now $64,000 a year, that Fred’s gross income, without overtime, was $111,600, and that Fred averaged $700 per month ($8400 per year) in overtime for a total of $120,000 a year. Fred argued that Vianne’s increased earnings since 1999 constituted a change in her circumstances and that with only herself to support her earnings were sufficient to maintain her marital standard of living.
Vianne responded with a request that her spousal support be increased or the current support order remain in effect. She also requested that Fred pay her costs and reasonable attorney fees. Vianne argued that because Fred no longer was required to pay child support the court should increase her spousal support as the stipulated judgment expressly stated that the spousal support award was not sufficient to allow her to maintain her marital standard of living without the child support payments. She further argued that because Fred’s earnings had increased since 1999 and because he was no longer paying child support he had more income available to pay higher spousal support.
The trial court denied both parties’ motions to modify the spousal support order and granted Vianne’s request for costs and attorney fees.
The court stated three reasons for its decision not to terminate or reduce Vianne’s support. This was a long term marriage of 22 years. Fred stipulated that Vianne’s earnings and spousal support were not sufficient to permit her to maintain the marital standard of living. Vianne’s current earnings plus spousal support brought her up to the marital standard of living.
Fred filed a timely appeal in which he contends that the trial court abused its discretion in denying his request to terminate or modify spousal support. He does not challenge the award of attorney fees and costs.
DISCUSSION
“Whether a modification of a spousal support order is warranted depends upon the facts and circumstances of each case, and its propriety rests in the sound discretion of the trial court the exercise of which this court will not disturb unless as a matter of law an abuse of discretion is shown.” (In re Marriage of Hoffmeister (1987) 191 Cal.App.3d 351, 357-358.)
To modify spousal support a moving party must first show a material change in circumstances since the prior order. (In re Marriage of Kennedy (1987) 193 Cal.App.3d 1633, 1638.) Fred met that requirement because the undisputed evidence showed Vianne’s earnings had increased from approximately $2900 a month at the time of the judgment in 1999 to $5500 in 2006.
A change of circumstances, however, does not ensure that modification will be granted. The court must still consider the relevant facts and circumstances of the case. (In re Marriage of Stephenson (1995) 39 Cal.App.4th 71, 78.) Although the court has broad discretion in applying the relevant factors to determine an award of spousal support, it is an abuse of discretion to make an award with no evidence to support it. (In re Marriage of Hoffmeister, supra, 191 Cal.App.3d at page 363.)
Applying these principles to this case, we conclude that the trial court abused its discretion by not capping the amount of spousal support.
The trial court found that Vianne needed $10,000 a year ($833 a month), the then spousal support under the formula, to attain the marital standard of living. Accordingly, the court should have ordered that spousal support be capped at that amount.
The trial court did not abuse its discretion in refusing to terminate or reduce spousal support at this time. The marriage was long-term. The evidence suggests that Vianne has reached the top of the pay scale for a teacher but that she still needs $833 a month support from Fred to attain the marital standard of living. For these same reasons we agree with the court that a Gavron warning was not appropriate in this case. (See In re Marriage of Gavron (1988) 203 Cal.App.3d 705.)
DISPOSITION
The order of October 20, 2006 is modified to provide that the maximum spousal support is $833 a month, effective on the date this opinion becomes final. In all other respects the order is affirmed. The parties shall bear their own costs on appeal.
We concur: VOGEL, Acting P. J., JACKSON, J.
(Judge of the L. A. S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
· $ 500 Chad
· $ 850 Crystal
· $ 280 Vianne
· $1000 Fred’s average monthly wages ($10,000 a week) minus his base monthly wage ($7,200 a week) equals $2800. 35 percent of $2800 equals $980 (rounded up to $1000).