Opinion
H032715
8-25-2009
In re the Marriage of SCOTT and KAREN BLAZER. SCOTT BLAZER, Respondent, v. KAREN BLAZER, Appellant.
Not to be Published in Official Reports
In this marital dissolution case, the wife asserts that the trial court abused its discretion in reducing spousal support. We disagree and affirm.
The order challenged here modified an earlier order, which is the subject of another appeal (H031574). We are filing our opinions in both appeals together.
BACKGROUND
The parties to this appeal are Scott Blazer (husband) and Karen Nickles Blazer (wife). Husband and wife were married in November 1982 and separated in January 2002. The marriage was dissolved in October 2002. The parties have two children together, both now adults. Their younger child, a son, was still a minor when these proceedings were instituted.
The principal marital asset was a company created in 1996 by husband and a business partner, called Blazer-Wilkinson LLC (BW). During the last several years of the marriage, husband had substantial earnings from BW.
Property Division
In December 2003, the court conducted a trial that addressed several issues, including business valuation. In a decision issued in February 2004, the court valued the communitys interest in BW at $5.6 million.
In October 2004, through mediation, the parties settled "the property aspects of their case," as "memorialized and confirmed" in a stipulation and order filed in June 2005. An exhibit to the order identified and valued the items of community property, though some values were disputed. Three parcels of real estate were subject to appraisal. Items on the exhibit that were "subject to determination and/or documentation" were to "be exchanged no later than November 29, 2004."
Under the agreed property division, husband received the community interest in BW.
Wife received all of the remaining property, which included: residential real property in South Carolina known as Sunpointe, where wife eventually moved; residential real property in South Carolina known as Daniel Avenue; residential real property in California known as Ranchito del Rio; vacant California land known as Critter Road; various bank, retirement, and investment accounts; other financial assets, including tax refunds, construction proceeds, lawsuit proceeds, and family loans, partnerships, and investments; personal property, including cars, a boat, and a wine collection. The parties also agreed that wife would receive an equalizing payment of approximately $ 1.34 million.
Spousal Support
Spousal support was first awarded in July 2002. At that time, husband was ordered to pay wife "guideline temporary spousal support in the amount of $57,224 per month, plus $6,500 a month for child support, effective June 1st."
2004: Modification of Temporary Support
In the December 2003 trial, spousal support was litigated along with the valuation of the community interest in BW. Addressing the support issue in its February 2004 decision, the court determined that this was "a marriage of long duration with a substantial standard of living." The court found it "premature to now make a permanent spousal support order." But it modified temporary support, reducing it to $52,000 per month, effective February 1, 2004.
The parties thereafter stipulated to a reservation of jurisdiction to modify support retroactive to August 15, 2004.
2006: Modification of Temporary Support, Setting of Permanent Support
Another trial was held in December 2005 and January 2006, which focused primarily on permanent spousal support. In January 2006, at the conclusion of the trial, the court ruled from the bench. In August 2006, a statement of decision was filed, which reflected the courts prior oral determinations on the contested issues.
In March 2007, a formal order after trial was entered. Consistent with the courts oral pronouncement and the statement of decision, the order reduced temporary spousal support to $30,000 per month, effective August 15, 2004, and it set permanent spousal support at $20,000 per month, effective January 1, 2006. In May 2007, both parties appealed the March 2007 order (H031754).
2006: Permanent Support Review Hearing
As part of its oral ruling in January 2006, the court ordered the parties back for a review hearing in August 2006. In explaining the purpose of the review hearing, the court said "given that theres going to be a significant distribution to [wife] of income producing assets, I would like to review spousal support in the case with an eye toward reducing it."
Prior to the August 2006 hearing, both parties submitted briefs. Husband attached several exhibits to his hearing brief, including an arbitration decision issued the previous month that finalized the terms of the equalizing payment; an amortization schedule for the corresponding promissory note; and schedules estimating wifes assets and income. Wife did not attend the August 2006 hearing, nor did she present any evidence.
In discussions with counsel at the August 2006 hearing, the court indicated that it was "looking at a marital standard of living target" for wife of about $400,000 per year, based on available disposable income during the marriage and the size of the household then. Husbands counsel asked the court to reduce that number by 40 percent, based on undisputed evidence produced at the 2005-2006 trial that the cost of living in South Carolina was that much lower than California. The court acknowledged its earlier determination, based on wifes September 2005 income and expense declaration, that wifes living expenses were $20,500 per month. But the court opined that that sum "doesnt necessarily take into account in full the marital standard of living, which . . . ought to push the number higher" and that an approach focused on marital spending history would be "more advantageous to her than basing this on her expenses." After "looking at the totality of the picture here," the court was "just not satisfied that there should be a reduction [in spousal support] from 20 thousand today." The court expressed its desire "to review the matter one more time with the same objective, not de novo, not to look at increases," and it invited "specific information from both parties about what realistic cost of living differential" should be applied to the marital living standard. Concerning management of wifes assets, the court indicated that the parties could also "address tax rates" and "how things are performing."
A hearing was set for January 2007. Pending the hearing, the current spousal support order of $20,000 was to remain in effect.
2007: Permanent Support Review Hearing
The review hearing took place in March 2007. Prior to the hearing, each party submitted two briefs. Wifes submissions included two evidentiary declarations by her as well as an updated income and expense declaration. Husbands submissions included declarations from two experts, economist Barry Ben-Zion and financial analyst Suanne Ramar.
At the hearing, the court received into evidence the declarations by Ben-Zion, by Ramar, and by wife. The court also heard testimony from all three.
Ben-Zion stated that the cost of living in South Carolina is "approximately 40 percent less," and he concluded "that about 240 thousand would be a reasonable measure of what it will take in South Carolina to buy what four hundred thousand standard of living will ... cost in Salinas."
Ramar analyzed wifes assets and declared that they "are sufficient to allow her to receive $240,000 per year, plus inflation adjustments of 2.5 percent each year, for life without invading the current principal of her investments." Ramar opined that "with a conservative portfolio . . . [wife] can anticipate earning at least 7.5 percent in total investment returns from her portfolio. This total investment return includes interest, dividends and both realized and unrealized gains in the principal value of [wifes] holdings."
Wife testified that she was paying investment advisers, but that she had no declarations from them about an overall financial plan. She acknowledged that her declaration did not "indicate what assets . . . these advisers" would be handling for her. Wife was asked: "Did you attempt to get your investment adviser to help you and assist you so that you could become self-supporting?" She answered: "We discussed it. We discussed it. But, yes." When asked whether she had structured her assets for self-support, wife replied: "Im working on it, yes." Wife confirmed her purchase of an undeveloped lot for $480,000, testifying that she "personally thought it was a good investment" as she "planned to buy it and turn it over for an investment stream." Wife had sold the Ranchito house and was waiting to learn her "total tax consequences" from the sale before investing the proceeds.
After receiving this evidence, the court entertained oral arguments. The court then rendered its decision from the bench.
The court first found "that there had been a material change in circumstances since our last review and since my initial setting of spousal support in the case, primarily that [wife] has received a distribution of assets that we were waiting for at the original trial and that had either not fully been completed or only recently been completed in August of 2006. So the assets available to her now to generate income I think do make up a material change in circumstances for me to consider whether there ought to be a modification." The court "then reviewed the [section] 4320 factors" without finding "any significant changes in any other categories than the assets that are now available to [wife]."
The court saw no "need to revisit the marital standard of living." Concerning the cost of living differential, the court declined to adopt "a linear application of Dr. Ben-Zions analyses" but nevertheless was "convinced that there are some cost differences." In quantifying wifes reasonable needs in South Carolina in relation to the marital living standard, the court was not persuaded that $240,000 per year "is correct. But I think it is properly something less than four hundred thousand." In considering an "acceptable rate of return," the court preferred "to err on the side of benefit to [wife] because there is no precise urgency in terms of investment strategies."
The court concluded: "I feel that [wife] should have some additional time to continue with her investments and I intend to give her that in the form of a step down order. I think that she does need some additional help in the form of spousal support to maintain that marital standard of living which is something less than four hundred thousand dollars net, but I think more than 240 thousand dollars net. And she does need some additional help in the form of spousal support to account for not immediately achieving a seven and a half percent rate of return on all the assets that have been distributed to her."
The court ordered a reduction in spousal support to $12,000 per month, effective April 1, 2007, with a further reduction to $5,000 per month, effective January 1, 2008.
In January 2008, the court entered its "Findings and Order" reflecting the oral ruling that it made in March 2007.
This appeal by wife ensued. Wife contends that the trial court abused its discretion in reducing support.
DISCUSSION
To establish the proper framework for our analysis, we first describe the legal principles that govern here. We then address husbands forfeiture arguments. Finally, we consider wifes contentions.
I. Legal Principles
A. Spousal Support
The trial court is authorized to order and to modify permanent spousal support, as provided in the Family Code.
Unspecified statutory citations in this opinion are to the Family Code.
1. Order for Permanent Support
Permanent spousal support "is governed by the statutory scheme set forth in sections 4300 through 4360. Section 4330 authorizes the trial court to order a party to pay spousal support in an amount, and 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 set forth in section 4320." (In re Marriage of Nelson (2006) 139 Cal.App.4th 1546, 1559; In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 302.) The statutory factors include the supporting spouses ability to pay; the needs of each spouse based on the marital standard of living; the obligations and assets of each spouse, including separate property; and any other factors pertinent to a just and equitable award. (§ 4320, subds. (c)-(e), (n).) "The trial court has broad discretion in balancing the applicable statutory factors and determining the appropriate weight to accord to each, but it may not be arbitrary and must both recognize and apply each applicable factor." (In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 207.)
2. Modification
"The trial court has broad discretion to decide whether to modify a spousal support order based on a material change of circumstances. In exercising this discretion, the court considers the same criteria set forth in section 4320 as it considered when making the initial order and any subsequent modification order." (In re Marriage of Terry (2000) 80 Cal.App.4th 921, 928; see also, e.g., In re Marriage of West (2007) 152 Cal.App.4th 240, 247.)
B. Appellate Review
We review spousal support orders under the deferential abuse of discretion standard. (In re Marriage of Nelson, supra, 139 Cal.App.4th at p. 1559.) "To the extent that a trial courts exercise of discretion is based on the facts of the case, it will be upheld `as long as its determination is within the range of the evidence presented. " (In re Marriage of Ackerman, supra, 146 Cal.App.4th at p. 197.)
II. Forfeiture
Husband contends that wife has forfeited her appellate claims them by failing to comply with appellate rules requiring her (1) to discuss evidence supporting the courts factual findings, and (2) to present the issues using separate, appropriate headings. (Cal. Rules of Court, rule 8.204 (a)(1)(B), (2)(C).)
A. Discussion of Material Evidence
The appellant has the burden of showing that a challenged order lacks sufficient evidentiary support. (Baxter Healthcare Corp. v. Denton (2004) 120 Cal.App.4th 333, 368.) "The appellants brief must set forth all of the material evidence bearing on the issue, not merely the evidence favorable to the appellant, and it also must show how the evidence does not sustain the challenged finding." (Ibid.) "If the appellant fails to set forth all of the material evidence, its claim of insufficiency of the evidence is waived." (Ibid.; Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.)
In this case, wifes brief in fact discusses the trial evidence presented by husband. As husband points out, however, wife misstates part of the evidence, specifically testimony of his financial expert, Ramar, concerning her consideration of the tax consequences of wifes investments. That said, we do not consider wifes brief so defective on this point as to warrant a finding of forfeiture. (Cf. Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 237 [rule violations did not warrant "drastic sanction" of dismissal].)
We therefore decline to find forfeiture on this ground.
B. Use of Proper Headings
The governing rules require appellate briefs to set forth "each point under a separate heading or subheading summarizing the point . . . ." (Cal. Rules of Court, rule 8.204 (a)(1)(B).) "This is not a mere technical requirement; it is `designed to lighten the labors of the appellate tribunals . . . . " (In re S.C. (2006) 138 Cal.App.4th 396, 408.) The reviewing court is not "obliged to speculate about which issues counsel intend to raise." (Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830, fn. 4.) "The failure to head an argument as required" thus may result in forfeiture of the contention. (Ibid.; see also, e.g., In re Mark B. (2007) 149 Cal.App.4th 61, 67, fn. 2.)
As husband correctly observes, wife "has presented the entirety of her discussion of both issues on appeal under just one heading" in her brief. Based on that single heading, wifes sole, undifferentiated argument is that the court abused its discretion in reducing spousal support. The discussion under that heading continues on for more than 12 pages without clearly identifying any specific ground for reversal. (See, e.g., In re S.C., supra, 138 Cal.App.4th at p. 408 [one heading subsumed "what appear to be five separate complaints that, because of the manner in which they are presented, are painful to read and difficult to understand"]; id. at p. 409 ["what is missing is any coherent argument"].)
Wifes legal argument thus leaves us to "speculate about which issues counsel intend to raise." (Opdyk v. California Horse Racing Bd., supra, 34 Cal.App.4th at p. 1830, fn. 4.) For that reason, we would be warranted in treating wifes contentions as abandoned and in simply not addressing them. (In re S.C., supra, 138 Cal.App.4th at p. 409.)
We nevertheless elect to consider the substance of wifes appeal, albeit summarily. We do so mainly because we find some signposts of wifes claims in the "conclusion" section of her brief. There, wife asserts an abuse of discretion "based upon the fact that the court did not have before it evidence which clearly indicated a change of circumstance from the prior order." She further complains that husbands evidence "did not equate at all to the marital standard of living established by [the parties] during their marriage." Wife also maintains that the court "abused its discretion in not thoroughly examining all of the factors of Family Code §4320 and weighing the evidence." We will assume that wife intends to raise these three points.
III. Spousal Support Modification
A. Change in Circumstances
"Modification of a spousal support order may be made only on a showing of a material change in circumstances after the last order." (In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 575.) That requirement is not intended to circumvent the goal of self-support, however. (In re Marriage of Shaughnessy (2006) 139 Cal.App.4th 1225, 1237.)
In this case, the previous order established permanent spousal support at $20,000 per month, starting in January 1, 2006. Since then, the trial court found, there was a material change in circumstances in that wife had "received a distribution of assets" that were "available to her now to generate income" for her own support.
As indicated earlier, that order was made by oral ruling in January 2006, and thereafter confirmed in the August 2006 statement of decision, and in the March 2007 formal order.
Wifes receipt of assets is an appropriate predicate for modification. (In re Marriage of Williams (2007) 150 Cal.App.4th 1221, 1236 [modification properly based on "changes in the parties respective financial conditions" including wifes receipt of proceeds from sale of property].) Even "changed expectations pertaining to the ability of a supported spouse to become self-supporting may constitute a change of circumstances warranting a modification of spousal support." (In re Marriage of Shaughnessy, supra, 139 Cal.App.4th at p. 1238.)
B. Marital Standard of Living
As this court recently reaffirmed, "the legal standard, `marital standard of living, is a mere general reference point" from which the determination of permanent spousal support proceeds. (In re Marriage of Nelson, supra, 139 Cal.App.4th at p. 1560.) "Section 4330 does not make `marital standard of living the absolute measure of reasonable need. `Marital standard of living is merely a threshold or reference point against which all of the statutory factors may be weighed." (Ibid.) "It is neither a floor nor a ceiling for a spousal support award." (Ibid.) "The Legislature intended `marital standard of living to be a general description of the station in life that the parties had achieved by the date of separation." (Ibid.)
In this case, the court had determined early on that the parties enjoyed "a substantial standard of living." In the decision challenged here, the court loosely quantified wifes current needs in relation to the marital living standard using a range between $240,000 and $400,000 per year. Husbands expert Ramar showed how wife could achieve at least $240,000 per year in investment income with conservative management of her assets.
Wifes contentions concerning the marital standard of living are lacking in merit, given the evidence, the applicable legal standard, and the presumption of correctness. "A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness." (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133; accord, In re Marriage of Ackerman, supra, 146 Cal.App.4th at p. 197.) Since "error must be affirmatively demonstrated, . . . an appellant must do more than assert error and leave it to the appellate court to search the record and the law books to test his claim." (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 557.) Wife has not carried her burden of demonstrating error here.
C. Statutory Factors
In setting or modifying permanent spousal support orders, the court must "fairly exercise the weighing process contemplated by section 4320, with the goal of accomplishing substantial justice for the parties in the case before it." (In re Marriage of Kerr (1999) 77 Cal.App.4th 87, 93; accord, In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 304.) Within that framework, the court "has broad discretion in weighing [the] statutory factors." (In re Marriage of Shaughnessy, supra, 139 Cal.App.4th at p. 1243.)
Here, the court specifically stated that it had "reviewed the 4320 factors" and had found no "significant changes" in the relevant circumstances, except for wifes receipt of assets. The other statutory considerations, which remained unchanged, had been fully vetted in prior hearings.
It is not our province to "reweigh the evidence," or to "substitute our judgment for that of the trial court." (In re Marriage of Ackerman, supra, 146 Cal.App.4th at p. 204.)
Under that standard, and on this record, we reject wifes claim that the court erred in "examining all of the factors of Family Code §4320 and weighing the evidence."
In sum, we find no abuse of discretion.
DISPOSITION
The challenged order is affirmed. Wife shall bear the costs of this appeal.
WE CONCUR:
Bamattre-Manoukian, Acting P.J.
Duffy, J.