Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from an order of the Superior Court of San Diego County No. DN137460, Earl H. Maas III, Judge. Affirmed.
HALLER, J.
Elizabeth DeBoer appeals from an order denying her request to reinstate spousal support. Finding no abuse of discretion, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The parties were married in April 1989 and separated in May 1999. During the marriage, Luntz, an engineer, earned about $86,000 annually. DeBoer, an elementary school teacher with a master's degree, earned about $48,000 annually. In 1996 DeBoer stopped working as a teacher after injuring her back in an automobile accident. In 1999 and 2001 she underwent back surgery, but continued to experience ongoing back problems.
Award of Spousal Support Until August 2005
After separation, DeBoer had primary custody of the parties' two children, ages 17 and 11. Pending trial, Luntz paid temporary child and spousal support. The support issues were adjudicated in 2003 and judgment entered in November 2004. DeBoer was awarded $2,034 monthly child support, with the award to be reduced to $1,271 in August 2003 when the older child reached age 18. She was also awarded $850 monthly spousal support, with the support to reduce to zero on August 1, 2005.
The parties apparently reached an agreement for Luntz to pay temporary child and spousal support commencing March 2000.
In awarding spousal support, the trial court made the following findings. The parties enjoyed a middle class standard of living during the marriage, and Luntz was able to pay the support. DeBoer's back injury impacted her ability to work as a teacher and educator, and her attempts from 1999 to 2002 at employment in various business ventures had earned relatively little income. Although DeBoer was "a multi-talented, well educated, intelligent individual," it was not clear that she possessed the necessary prerequisites for certain education-related positions or that her physical condition would allow her to return to her prior employment. The court noted that DeBoer was currently working on her Ph.D., and posited that to maximize her earning capacity and to support herself in a lifestyle comparable to preseparation, she would need to complete her Ph.D. or be retrained. The court suggested she could teach in a university setting, which would offer a less strenuous teaching environment and more flexible work hours to accommodate her physical limitations. The court concluded she should be able to complete her education in an 18-month to two-year period.
These business ventures included an Internet travel agency, newsletter editor, consultant for computer users, author, grant writer, Internet marketing, and a home-based online business.
DeBoer's Requests for Extended Spousal Support
In July 2005, DeBoer filed a motion to extend the spousal support beyond August 2005. The trial court denied her motion, finding that DeBoer had not demonstrated a change in circumstances and she had "marketable skills and is employable in the field of education and computer web site development."
In August 2007, DeBoer filed a second motion to modify the spousal support order, contending that because of changed circumstances she had not been able to realize the ability to earn as anticipated by the trial court. The court denied her motion. This is the order at issue in this appeal.
To support her claim of changed circumstances, DeBoer provided information from her doctors assessing her current medical condition in 2006, and a 2007 decision by the Social Security Administration (SSA) finding her eligible for disability benefits.
The doctors' reports stated that her back surgery had not been successful because her back had not "solidly fused" at the surgery site. Further, X-rays and a CT scan showed significant evidence of pseudoarthrosis and some motion of the screws in her back. The doctors opined that although additional surgery might achieve a solid fusion and lessen her pain, it was likely that she would continue to experience persistent pain.
In the SSA decision, the administrative law judge (ALJ) noted the new medical evidence showing her unsuccessful lumbar fusion, the probable development of pseudoarthrosis, and some loosening of the screws used to stabilize her spine. The ALJ concluded that she had a severe medically determinable impairment resulting in continuing and debilitating low back pain, and that she was unable to perform the type of work she had previously performed in the education field (including such positions as principal, faculty member at a university, teacher, or school librarian). The ALJ found that she did "retain[] the residual functional capacity to perform work activity at the sedentary exertional level, with a sit-stand option at will." Sedentary work was defined "as work involving lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools, with no more than occasional standing or walking." However, the ALJ found she was " 'closely approaching advanced age,' " and although she had an advanced education and a skilled work background she had no skills that were transferable to other work within the limitations of her residual functional capacity. The ALJ concluded she was disabled because she could not engage in "substantial gainful activity," and accordingly was entitled to benefits.
In her motion requesting spousal support reinstatement, DeBoer asserted that this new information showed that—contrary to the expectations in the trial court's previous rulings—she was unable to resume her studies, pursue training, or obtain gainful employment. She contended that her disability income was not sufficient to support herself in the middle class lifestyle she enjoyed during the marriage, and that based on the new medical evidence the court should award her reasonable spousal support.
The information submitted to the trial court in conjunction with DeBoer's motion showed that she was 56 years old; her claimed monthly expenses were $3,265; and her monthly income totaled $3,021 (consisting of $804 Social Security benefits for herself, $448 Social Security benefits for her 16-year-old daughter; $1,694 child support; and $75 from tutoring, her Web site, and royalties). Luntz's monthly income was $11,200 and his claimed monthly expenses were $6,895.
Monthly child support was increased from $1,271 to $1,694 in August 2005. Regarding the $75 monthly income generated by DeBoer's own work, DeBoer submitted a declaration stating that her past tutoring work earned her less than $100 per month; she has sold a few of her old books online which generated no significant income and was not a continuing source of funds; and she has received residual royalty income which "is about completely gone" and which amounted to only a few dollars in 2007. The royalties apparently came from a published book co-authored by DeBoer.
Opposing DeBoer's motion, Luntz argued that DeBoer was revisiting the same issues that had already been adjudicated with no change in circumstances warranting relief, and that "she ha[d] done little with her education and opportunities [it] afford[ed]." He posited that she was capable of operating a home business, Web site design, and working as a paralegal assistant. To support his position, Luntz noted that she had been able to act as her own attorney in various matters, and he directed the trial court to an Internet Web site that was set up and used by DeBoer.
In January 2008, the trial court issued its decision. The court awarded $1,568 monthly child support, and denied DeBoer's request to reinstate spousal support. At the hearing on DeBoer's motion, the trial court noted that during the previous hearings "everybody thought [DeBoer would] be employable" and the question before it was whether as a result of the failure of the surgeries and the disability finding she was not employable. After taking the matter under submission, the court concluded that she had some level of employability and that she could meet her monthly expenses without spousal support. That is, the court found that based on the income she received from Social Security and for child support, and her "recognized ability to work on the internet, she should be able to meet her monthly expenses." Regarding DeBoer's physical disability, the court explained: "While she is disabled from much work, the Court is not convinced that she can not do anything to generate some income. Simply reviewing the quality of the pleadings filed before representation and her various actions throughout the history of the litigation, [she] is clearly intelligent, articulate, well educated and thoughtful. Her limited mobility is certainly a disability, but not a prohibition from working in any capacity."
DeBoer does not challenge the child support award on appeal, and thus we need not delineate the facts concerning the child support ruling.
DeBoer represented herself during a portion of the proceedings concerning her request for reinstatement of spousal support, but obtained counsel prior to the January 2008 hearing.
DISCUSSION
DeBoer argues the trial court's order should be reversed because (1) there was no evidence she could generate income from the Internet, and (2) the court failed to consider and weigh all the statutory factors governing spousal support set forth in Family Code section 4320.
Subsequent statutory references are to the Family Code unless otherwise specified.
Substantial Evidence
A trial court may modify a spousal support order if there has been a material change of circumstances since the last order. (In re Marriage of West (2007) 152 Cal.App.4th 240, 246.) When considering a request to modify spousal support, the trial court considers the same criteria, set forth in section 4320, that it considered when making the original order. (Id. at p. 247.) These criteria include the extent to which the parties' earning capacity is sufficient to maintain the marital standard of living, considering such factors as the supported spouse's marketable skills and need for education or retraining; the supporting spouse's ability to pay; the parties' needs based on the marital standard of living; the duration of the marriage; the parties' ages and health; the balance of hardships; the goal that the supported party become self-supporting within a reasonable period of time; and any other equitable factors. (§ 4320.)
No one factor is determinative when a trial court is considering the spousal support issue. Rather, the determination "reflect[s] a complex variety of factors . . . committed to the trial judge's discretion . . . ." (In re Marriage of Schulze (1997) 60 Cal.App.4th 519, 525.) Maintenance of the marital standard of living for the supported spouse is "just one factor to be weighed with all the other applicable factors to reach a 'just and reasonable' result." (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 490; In re Marriage of Shaughnessy (2006) 139 Cal.App.4th 1225, 1247.) Further, the trial court must consider the state's policy that a spouse is entitled to "postdissolution support for only so long as necessary to become self-supporting." (In re Marriage of Pendleton & Fireman (2000) 24 Cal.4th 39, 53; In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 54.) The trial court may properly consider the supported spouse's earning capacity, and may set a termination date for spousal support based on an assessment that the supported spouse will reach the self-supporting goal, subject to the supported spouse's right to seek modification in the event of changed circumstances. (See In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 302, 308, 311; In re Marriage of West, supra, 152 Cal.App.4th at p. 248; In re Marriage of Shaughnessy, supra, 139 Cal.App.4th at pp. 1238, 1245-1247.)
When a supported spouse seeks a continuation of support that has been ordered to be terminated, the supported spouse "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 [his or her] ability to become self-supporting within a certain period of time." (In re Marriage of Hoffmeister (1987) 191 Cal.App.3d 351, 365.) The supported spouse "must also show that [he or she] has made an effort to become self-supporting." (Ibid.) A trial court may properly deny spousal support when the supported spouse has failed to diligently seek employment consistent with his or her ability, even when the failure to exercise diligence has not been in bad faith. (In re Marriage of Shaughnessy, supra, 139 Cal.App.4th at p. 1238.)
Whether a modification of spousal support is warranted depends upon the facts and circumstances of each case. (In re Marriage of Bower (2002) 96 Cal.App.4th 893, 898.) The weight to be given to each statutory factor is within the trial court's broad discretion. (In re Marriage of Cheriton, supra, 92 Cal.App.4th at pp. 304, 308.) On appeal, we review the trial court's ruling for abuse of discretion and do not disturb it unless no reasonable judge could make the order. (In re Marriage of Bower, supra, 96 Cal.App.4th at pp. 898-899.) We draw all reasonable inferences in favor of the court's order, and uphold it if supported by substantial evidence even if the record can also support a different order. (Id. at p. 899; In re Marriage of West, supra, 152 Cal.App.4th at p. 246.)
Here, it appears that the trial court found there were changed circumstances (i.e., the new medical evidence calling into question DeBoer's employability), but that the change did not warrant a reinstatement of spousal support. The trial court concluded that DeBoer's income was sufficient to meet her needs, with some supplementation through her own work efforts. The court found that although she had limited mobility due to her disability, her high level of intelligence and education indicated that she could generate some income.
The record supports the trial court's ruling. Once the trial court calculated the child support award at the 2008 proceeding, the difference between DeBoer's monthly income and claimed monthly expenses was $370 ($3,265 minus $2,895). Given her level of education, it was not unreasonable for the trial court to find that she could make $370 additional monthly income.
Her income consisted of $804 Social Security for herself, $448 Social Security for her minor daughter, $1,568 child support, and $75 from tutoring, her Web site and royalties.
We are not persuaded by DeBoer's contention that the record does not support the court's ruling because there was no substantial evidence that she could generate income from the Internet. The court was presented with evidence showing that she was capable of producing quality, marketable products, as reflected in her Web site and in the pleadings she herself produced during the period of time she represented herself in the family court proceedings. This evidence supports the court's finding that she was capable of generating some income, whether it be from the Internet or other work within her physical limitations.
We note that the trial court's finding that DeBoer was capable of self-support for spousal support purposes was not inconsistent with the SSA's finding that she was entitled to disability benefits because she could not "engage[ ] in any substantial gainful activity." The trial court did not conclude that DeBoer could engage in employment to meet all her financial needs, but rather concluded that given the income she was receiving she could supplement her income to meet her needs. Notably, the SSA found that she could perform sedentary work, but that her age and lack of transferable skills supported awarding her benefits. For purposes of deciding whether DeBoer could nevertheless generate some income, the trial court could consider that although she was in her 50's, her high level of education and intelligence would facilitate her acquisition of any needed skills and compensate for any disadvantages arising from her age.
Further, although the record contains information from DeBoer indicating that she earned only $75 monthly income from her work efforts, there is no detailed information showing the extent of efforts to secure employment or pursue income-generating activities. For example, at the hearing on her motion, DeBoer told the court she was no longer tutoring, and she did not provide an explanation as to why she had not sought to pursue and expand this potential source of income. On this record the trial court could reasonably conclude that DeBoer had not carried her burden to show concerted efforts to find or create income generating opportunities within the constraints of her physical limitations. As the moving party, it was DeBoer's obligation to show the efforts she had undertaken to become self-sufficient. (In re Marriage of Hoffmeister, supra, 191 Cal.App.3d at p. 365.)
DeBoer also contends that because Luntz has the financial ability to pay spousal support and because the marriage was of long duration, spousal support should have been awarded so that she can maintain the marital standard of living. As stated, the weight to be given to each relevant factor is a matter within the trial court's sound discretion, and as long as there is reasonable evidentiary support for the court's ruling, we cannot disturb it on appeal. (In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 308; In re Marriage of West, supra, 152 Cal.App.4th at p. 246.) The standard of living enjoyed by the parties during the marriage is only one factor that the trial court must consider when weighing all the relevant criteria, and "the goal of achieving the marital standard of living may
A marriage of 10 years or longer is presumed to be a marriage of long duration. (§ 4336, subd. (b).)
decrease in relative importance over time." (In re Marriage of Shaughnessy, supra, 139 Cal.App.4th at p. 1247.) The record supports the trial court's finding that DeBoer had sufficient income and abilities to support herself. At the time of the January 2008 hearing, the parties had been separated for about eight and one-half years, and DeBoer had received support for approximately five of those years. Under these circumstances, it was not unreasonable for the court to conclude that the policy in favor of self-support outweighed the other factors cited by DeBoer.
Consideration of Section 4320 Criteria
DeBoer's contention that the order should be reversed because the trial court failed to consider and weigh all the factors set forth in section 4320 is unavailing. Section 4320 states that a trial court "shall consider" the statutory criteria when ordering spousal support. (See In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 302 [trial court must consider and weigh all relevant statutory criteria].) However, there is no provision in section 4320 requiring the trial court to explicitly state that it has done so, and DeBoer has not cited any authority imposing such a duty.
Further, DeBoer did not request a statement of decision. If she wanted a full statement of the factual and legal basis for the court's decision, she was obligated to request a statement of decision, and then to point out any deficiencies in the statement to give the court an opportunity to clarify its ruling. (In re Marriage of Jones (1990) 222 Cal.App.3d 505, 515; In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1132-1134; § 3654; Code Civ. Proc., §§ 632, 634.) In the absence of a contrary showing in the record, we presume the trial court considered and weighed all the relevant factors. (See In re Marriage of Jones, supra, 222 Cal.App.3d at p. 515; In re Marriage of Arceneaux, supra, 51 Cal.3d at pp. 1133-1134.)
DeBoer has not shown the trial court abused its discretion in denying reinstatement of spousal support. Accordingly, we affirm the order.
DISPOSITION
The order is affirmed. Parties to pay their own costs on appeal.
WE CONCUR: McCONNELL, P. J., McDONALD, J.