Opinion
2d Civil No. B167041.
11-17-2003
In re Marriage of GAELYN and DONALD CHAMBERS. GAELYN CHAMBERS, Appellant, v. DONALD CHAMBERS, Respondent.
Gary R. Ricks; Brigham J. Ricks; Ricks & Associates, for Appellant. Griffith & Thornburgh; John R. Rydell, for Respondent.
Gaelyn Chambers appeals from an order modifying spousal support and ordering a step-down of support effective June 1, 2004 with automatic step-downs to June 1, 2008. There was no abuse of discretion and we affirm the order.
Facts and Procedural History
Donald Chambers (husband) and Gaelyn Chambers (wife) separated in 1997 following a 21 year marriage. They have three children. Two are in college and the youngest is a high school junior.
In 1997, husband owned a 23.5 percent partnership interest in Mercer Global Advisors (MGA), a financial planning company. The partnership interest, in the form of MGA stock, was valued at $3,489,750.
Husband and wife entered into a March 9, 1999 stipulated judgment for property division. Wife was awarded, among other things, husbands 401K retirement plan (approximately $160,000), the family residence, and a $707,000 equalizing payment. Husband assumed the mortgage debt on the family residence and was awarded the MGA stock and some undeveloped property.
After judgment was entered, MGA terminated husbands employment. Husband negotiated a severance package that included a consulting agreement ($225,000), a personal injury settlement ($822,154), a non-competition agreement, ($496,000), and the buy out of his MGA stock ($4,035,000). Husband received four MGA promissory notes that were amortized over ten years.
The 1999 judgment reserved jurisdiction over support issues which were tried in March 2000. The trial court found that husbands interest income was $33,000 per month and that his self-employment was $15,666 per month. Wifes imputed income was $2,000 a month and $2,708 a month from investments. Husband was ordered to pay $12,700 a month spousal support and $6,531 a month child support. Child support was reduced to $3,754 on September 20, 2000, after the second oldest child graduated from high school.
In 2001, husband brought a motion to reduce support because he was no longer receiving consulting income and his interest income on the promissory notes had dropped. The trial court denied the motion, finding no material change of circumstances.
In November 2002, husband brought a second motion to modify support on the ground that his interest income had declined by 40 percent. Wife was unemployed and had a teaching credential and a masters degree in education. She was attending graduate school to earn a certificate as an MFCC.
The trial court said that there was "no material change in circumstances." It ordered husband to continue paying $3,754 a month child support until June 2004 when the youngest child graduates from high school.
With respect to spousal support, the trial court found that wife should seek employment. The trial court stated that wife has "a masters degree in education and going for a masters in MFCC. Im not sure which one has the earning capacity she needs. Either one should be sufficient." The trial court found that the existing support order "has been making it too easy not to [get employment]. However, based on the standard of living in this family, it is in the best interests of the minor child Matthew, a junior in high school, and two unmarried daughters in college, that the Wife not be forced out on the marketplace immediately. The minor son needs attention. The time will come, however, in June 2004, when a step-down of Wifes support must be implemented."
Applying the guidelines set forth in Family Code section 4320, the trial court reduced spousal support from $12,700 to $10,700 a month commencing June 1, 2004. The court ordered incremental step-downs until June 1, 2008, at which time support would be $2,700 a month. The trial court reserved jurisdiction to "review the continuing status of spousal support and consider termination" on June 1, 2009.
All statutory references are to the Family Code.
The order provides for support step-downs to $ 10,700 a month on June 1, 2004, $8,700 a month on June 1, 2005, $ 6,700 a month on June 1, 2006, $4,700 a month on June 1, 2007, and $2,700 a month on June 1, 2008.
Material Change of Circumstances
Wife contends that the trial court abused its discretion in modifying support. (In re Marriage of Biderman (1992) 5 Cal.App.4th 409, 412-413.) "The standard rule that modifications in support orders may only be granted if there has been a material change of circumstances since the last order [citation] was designed to prevent repeated attempts to modify support orders without justification, not to circumvent the goal that supported spouses become self-supporting within a reasonable period of time. [Citation.]" (In re Marriage of Schaffer (1999) 69 Cal.App.4th 801, 803-804.)
Here the stipulated judgment contained a section 4320 admonition that "each party shall make reasonable good faith efforts to become self-supporting . . . . The failure to make reasonable good faith efforts may be one of the factors considered by the court as a basis for modifying or terminating spousal support."
In In re Marriage of Beust (1994) 23 Cal.App.4th 24, we held that the unrealized expectation that an ex-spouse would be self-supporting constituted a change of circumstances. "So long as the supported spouse has made reasonable efforts to become self-supporting, a change of circumstances may be in the form of `unrealized expectations in the ability of the supported spouse to become self-supporting within a certain period of time. [Citations.] `[T]he question of reasonable expectations is material and a failure to realize them may constitute a change of circumstances justifying modification of the order. [Citation.]" (Id., at p. 29.)
The same principle applies here. Pursuant to the 1999 judgment, the trial court reserved jurisdiction and warned the parties that they must make reasonable good faith efforts to become self-supporting. At the hearing on the motion to modify support, wife acknowledged that the trial court had advised her "a number of years ago" to get employment. Wife was in good health, had a teaching credential and masters degree in education, and not working. In the five years that the parties were separated, she submitted only two applications for temporary employment. The trial court found that the support order made "it too easy" not to seek employment.
Husband declared that the trial court "has continually reminded Gaelyn that she will be required to earn an income and become self-supporting, [but] she refuses to do so. Gaelyn continues to state that she is needed at home to `take care of our 16 year old son Matthew and that she would be required to continue her education to enable her to become employed. These same excuses . . . have been ongoing for over 2 years and there has been no attempt by her to become self-supporting."
Balancing the hardships of the parties, the trial court ordered a step-down of support but delayed it until June 1, 2004 so there would be no detriment to the children. (§ 4320, subds. (g) & (k).) The trial court found that wife "does have the ability to earn money. And from — either from the MFCC, if she finishes that, or from her teaching credential. I think either one wouldnt — shouldnt be a problem for her to get back into the marketplace and be able to take care of her own needs in the future."
Wife contends that husband merely "re-packaged" the motion to modify support previously denied in 2001. One can argue that the reduction in husbands interest income is not a "change of circumstance" because the payment schedule on the promissory notes was established in 1999 as part of the MGA severance package. But the 1999 judgment and 2000 spousal support order anticipated that wife would seek gainful employment. The unrealized expectation that wife would make reasonable efforts to seek employment is a change of circumstance permitting a step down of support. "`To justify a continuation of support, [wife] has the burden to show a change of circumstances since the initial award, which may be in the form of a deviation from those reasonable expectations of her ability to become self-supporting within a certain period of time. [She] must also show she has made an effort to become self-supporting. . . . [Citation.] " (In re Marriage of Berland (1989) 215 Cal.App.3d 1257, 1263-1264.) Citing In re Marriage of Rising (1999) 76 Cal.App.4th 472, wife argues that there is no evidence that her future needs will decrease to justify the automatic step-down. The step-down order, however, does not terminate jurisdiction. (Compare In re Marriage of Prietsch & Calhoun (1987) 190 Cal.App.3d 645, 654, 660 [trial court ordered automatic step down to terminate support "absolutely and forever"].) The trial court stated its reasons for the step-down order which include wifes age and good health, her teaching credential and masters degree, the debts and assets of the parties, the age of the children, the earning capacity and income of the parties, the standard of living during the marriage, and the "goal that the supported party shall be self-supporting within a reasonable period of time . . . ." The trial court ordered that these "determinations are without prejudice to a further motion based on a material change in circumstances."
"The difference between a step-down order which allows for retention of jurisdiction to award support in the future and one which doesnt is the difference between lightning bug and lightning: One represents a relatively modest accommodation to the need for an incentive to become supporting and the other is an absolute bar to any support regardless of future circumstances. The case before us falls into the less controversial `lightning bug category." (In re Marriage of Schaffer, supra, 69 Cal.App.4th at p. 812, fn. 7.)
Wife argues that the trial court was exasperated with the parties and wanted to make "some kind of peace." She claims that the order violates section 4320, subdivision (l) which presumes that the supported spouse will be self-supporting within a period equal to one-half the length of the marriage — here, a 21 year marriage. This "statutory guideline flies in the face of a reading of the material change of circumstance rule that would prevent a trial judge from looking at long-term patterns of job training and employability." (In re Marriage of Schaffer, supra, 69 Cal.App.4th at p. 810.)
The record indicates that wife has received support since 1998. Rather than terminate support, the trial court ordered a graduated step-down until June 1, 2009, at which time it may continue or terminate support. It did not err in concluding that 10-plus years of support will provide wife ample time to complete her college studies and enter the job market. "Although the automatic reduction rests on as much speculation as evidence, we cannot classify it as an abuse of discretion." (In re Marriage of Andreen (1978) 76 Cal.App.3d 667, 672-673.) The public policy of this state is to encourage ex-spouses to become self-supporting within a reasonable period of time. (& sect; 4320, subd. (l); In re Marriage of Beust, supra, 23 Cal.App.4th at p. 29; In re Marriage of Pendleton and Fireman (2000) 24 Cal.4th 39, 53.)
The judgment (order modifying spousal support) is affirmed. The parties shall bear their own costs on appeal.
We concur: GILBERT, P.J., COFFEE, J.