Opinion
G060953
06-01-2023
In re the Marriage of TERRI E. and GLENN R. DRAKE. v. GLENN R. DRAKE, Respondent. TERRI E. DRAKE Appellant,
Terri E. Drake, in pro. per.; Law Offices of Thomas M. McIntosh and Thomas M. McIntosh for Appellant. Glenn R. Drake, in pro. per., for Respondent.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County, No. 07D000906 Shelia Recio, Judge. Affirmed.
Terri E. Drake, in pro. per.; Law Offices of Thomas M. McIntosh and Thomas M. McIntosh for Appellant.
Glenn R. Drake, in pro. per., for Respondent.
OPINION
SANCHEZ, J.
Terri E. Drake appeals from a postjudgment order terminating the spousal support she receives from her ex-husband, Glenn R. Drake, as of October 2023. On appeal, she claims the court erred by terminating spousal support and based its decision on various mistaken facts. We disagree and affirm the order.
FACTS
Glenn and Terri separated in 2006, ending their 13-year marriage. They have two adult children. In 2007, Terri filed a petition for dissolution of marriage.
We refer to the parties by their first names for ease of reading, and not out of disrespect.
In August 2008, the court issued a judgment for dissolution of marriage, which incorporated the parties' stipulated judgment (the Stipulated Judgment). With respect to spousal support, the Stipulated Judgment required Glenn to pay $1,124 per month in spousal support to Terri with the first half payable on the first day of the month and the second half payable on the 15th day of the month. The spousal support provision stated the payments would "continu[e] until further order of the court, the remarriage of [Terri, or] the death of either party, whichever occurs first." The Stipulated Judgment also stated spousal support did not meet either party's marital standard of living but was based on Terri's "income (imputation) of $1,478 per month, and [Glenn's] gross income of $10,284." As for additional spousal support, Glenn was required to keep Terri insured on all medical, dental, and vision benefits until January 1, 2009. He also was required to assist Terri in obtaining a vehicle through his employment and was responsible for their two leased vehicles.
In March 2021, Glenn filed a request for an order terminating or modifying spousal support (RFO). He argued there was a material change of circumstance since the Stipulated Judgment because: (1) he lost his job due to being laid off; and (2) he had to provide increased financial assistance to their adult son who resided at a residential treatment center in Texas. He also argued Terri failed to become self-supporting, four years had passed since she received a Gavron warning, and he paid spousal support to Terri for 14 years, which was longer than the parties' marriage.
A Gavron warning, which is codified in Family Code section 4330, subdivision (b), is a warning to the supported spouse that he or she is expected to become self-supporting. (In re Marriage of Gavron (1988) 203 Cal.App.3d 705, 712.)
In August 2021, Glenn filed an income and expense declaration indicating he had obtained employment after he filed the RFO. His income was greater than before ($17,307 per month) and he received a severance payment from his prior employer in the amount of $184,500.
In September 2021, Terri filed a responsive declaration to the RFO seeking an increase in spousal support. Among other things, she stated she had cognitive issues, including "ADD/ADHA" along with "severe pain daily in [her] left hand, feet, shoulder, and lower back and . . . compressed discs in [her] lower back." She noted she was a trained chef but could not work "due to the repetitive movements, the strength it takes to work in a kitchen, and unsafe [sic] for me to handle knives and heavy items." In support of her responsive declaration, Terri attached letters from a doctor and a clinical psychologist. These letters from 2007 indicated Terri had attention deficit hyperactivity disorder. She also attached a September 2021 letter from a doctor indicating she had "disc disease in her spine and widespread osteoarthritis with areas of advanced disease that cause pain and limitation in activities." The letter stated: "Work or tasks requiring lifting, prolonged standing, repetitive or heavy use of hands are recommended against ...."
After a hearing, the court found there was a material change in circumstance based on Terri's failure to make good faith efforts to become selfsupporting. The court accordingly ordered Glenn to continue paying $1,124 per month in spousal support to Terri for two years until October 31, 2023, at which time spousal support would terminate. The first half was due on the first day of the month and the second half was due on the 15th day of the month.
The court also addressed the factors under Family Code section 4320.
All further statutory references are to the Family Code.
First, with respect to earning capacity, the court noted Terri, who was a trained chef, received a Gavron warning in December 2016. She made some attempts to become selfsupporting and earned income at times, including a gross income of $17,000 in 2019 from a catering business she started. But her catering business later suffered due to the COVID-19 pandemic. While she applied for various jobs, she was unsuccessful in obtaining employment. The court noted Terri complained of health ailments and an inability to lift heavy items or complete repetitive work, but the court believed Terri should become self-sufficient. The court emphasized that a vocational expert opined Terri could earn between $27,040 to $43,680. But the court noted Terri's earning capacity was impaired by periods of unemployment during the marriage because she stayed home to raise the parties' two children. The court concluded Terri's efforts to become self-supporting were insufficient but extended spousal support until October 31, 2023, due the COVID-19 pandemic.
Second, with respect to Terri's contributions, the court found she assisted Glenn by taking care of their children while he received a Master of Business Administration degree from the University of Southern California. Third, Glenn had the ability to pay spousal support. Fourth, as to the needs of each party, the $1,124 in spousal support was based on Terri's imputed income of $1,478 per month and $2,132 in monthly spousal support in effect until the family residence was sold or until June 2010. The court also noted Glenn had been paying spousal support for nearly 15 years, which was longer than the duration of the marriage (13 years &9 months). Fifth, Terri did not possess a lot in terms of savings and assets while Glenn's savings and assets were valued near $1 million.
Sixth, Terri agreed she could earn minimum wage on a full-time basis at the time of the Stipulated Judgment in 2008. Terri had an Associate of Arts college degree and started a business that earned income for a period of time. She also was no longer obligated to take care of her adult children. Seventh, the court noted Terri was 54 years old and in fair health with ailments that might hinder some employment while Glenn was 55 years old and in good health. Eighth, as to balance of hardship, the court found Glenn was financially responsible for their adult son. Finally, the court noted that for a period of time, Terri received $1,404 in monthly child support for their adult son. While an appellate court determined the payments should not have been received by Terri, she never returned the previously paid amounts.
Terri timely appealed.
DISCUSSION
Terri generally contends the court abused its discretion by terminating spousal support as of October 31, 2023. She also argues the court terminated spousal support based on various mistaken facts when addressing the section 4320 factors. We disagree.
Applicable Law and Standard of Review
An agreement for spousal support is "subject to subsequent modification or termination by court order." (§ 3591, subd. (a).) "Modification of spousal support, even if the prior amount is established by agreement, requires a material change of circumstances since the last order. [Citations.] Change of circumstances means a reduction or increase in the supporting spouse's ability to pay and/or an increase or decrease in the supported spouse's needs. [Citations.] It includes all factors affecting need and the ability to pay." (In re Marriage of McCann (1996) 41 Cal.App.4th 978, 982.) To terminate a support order containing no express termination date, the supporting spouse must establish "a change in circumstances which justifies termination." (In re Marriage of Heistermann (1991) 234 Cal.App.3d 1195, 1201.)
"A trial court considering whether to modify a spousal support order considers the same criteria set forth in . . . section 4320 as it considered in making the initial order." (In re Marriage of West (2007) 152 Cal.App.4th 240, 247.) Section 4320 contains several mandatory considerations: (1) each spouse's ability to maintain the marital standard of living, taking into account their skills, the current market, their need for retraining, and any disadvantage one spouse incurred by previously forgoing employment in lieu of domestic duties (id., subd. (a)(1)), (2); (2) contributions to the supporting spouse's education, training, career, or license (id., subd. (b)); (3) the supporting spouse's ability to pay spousal support (id., subd. (c)); (4) the needs of each spouse based on the marital standard of living (id., subd. (d)); (5) the obligations and assets of each spouse (id., subd. (e)); (6) the duration of the marriage (id., subd. (f)); (7) the supported spouse's ability to engage in gainful employment without unduly interfering with the interests of dependent children (id. subd. (g)); (8) the age and health of the spouses (id., subd. (h)); (9) documented evidence of any history of domestic violence (id., subd. (i)); (10) tax consequences (id., subd. (j)); (11) the balance of hardships (id., subd. (k)); (12) the goal that the supported spouse shall be self-supporting within a reasonable time period, which is generally "one-half the length of the marriage," except in the case of a marriage of long duration (id., subd. (l)); (13) an abusive spouse's criminal convictions (id., subd. (m)); and (14) any other factors the court deems just and equitable (id., subd. (n)). In balancing these factors, it is up to the trial court "to determine the appropriate weight to accord to each" factor. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 304.)
We review a court's decision to modify spousal support for abuse of discretion. (In re Marriage of Minkin (2017) 11 Cal.App.5th 939, 956-957.)
Material Change of Circumstances
As noted, ante, section 4320, subdivision (a) requires the court consider the extent to which the earning capacity of each party is sufficient to maintain the marital standard of living. (Ibid.) Likewise, section 4320, subdivision (l) directs the court to consider "[t]he goal that the supported party shall be self-supporting within a reasonable period of time." (Ibid.) Once a supported spouse is warned by the court but fails to take action to decrease the need for spousal support, the court may consider this to be a material change of circumstances warranting a modification of spousal support. (In re Marriage of Shaughnessy (2006) 139 Cal.App.4th 1225, 1238 ["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"].)
Here, the court addressed all the section 4320 factors and found a material change in circumstances based on Terri's failure to make good faith efforts to become self-supporting. The evidence supports the court's finding. Terri was first told in December 2016 that she was expected to make reasonable efforts to become selfsupporting. She accordingly had more than four years to prepare to become financially independent. During this time, the parties' children were adults and Glenn provided spousal support to Terri. The record also contains evidence of Terri's potential to support herself. A vocational expert opined Terri had an earning potential between $27,040 to $43,680. While Terri made some attempts to become self-supporting, these proved to be ineffective. Regardless, the court acknowledged the potential impact of the COVID-19 pandemic and extended spousal support for an additional two years until October 31, 2023, to provide Terri with more time to become self-supporting. Indeed, by extending spousal support, Glenn will have paid spousal support for about 17 years for a marriage that was approximately 13 years and 9 months long. Because Terri had many years to prepare for the eventuality of becoming financially independent and was not sufficiently diligent in doing so, the court acted within its discretion by extending spousal support for two years and ultimately terminating support. (In re Marriage of Shaughnessy, supra, 139 Cal.App.4th at p. 1238 ["A trial court acts within its discretion in denying spousal support where the supported spouse has failed to diligently seek employment sufficient to become self-supporting"]; In re Marriage of Sheridan (1983) 140 Cal.App.3d 742, 749 [trial court acted within its discretion by refusing to continue spousal support given supported spouse's failure "to prepare herself for or to seek gainful employment" after five years following a 13-year marriage].)
Terri contends the court based its order on various factual mistakes. She first claims the court mistakenly found she earned $17,000 in 2019 from a catering business she started. She argues "that amount was [her] total income, including [her] spousal support of $13,488, which means [her] income from the business was less than $6,000." But at the hearing on the RFO, Terri's counsel asked a series of questions about the catering company Terri had started. When asked how much money she made in 2019, Terri testified she made around $17,000. Given her testimony, the court's finding was supported by the evidence. Even assuming Terri's testimony was unclear or that the court erred, Terri's actual earnings in 2019 would not change the key issue here: Terri can and should be working now.
Terri next argues the court mistakenly found there was no evidence of her medical conditions. Not true. The court expressly took Terri's health into account. Indeed, the court noted Terri "complain[ed] of health ailments (e.g., lower back stiffness and pain) and an inability to lift heavy items or complete repetitive work." The court further acknowledged Terri's health ailments "may hinder some employment."
Given her osteoarthritis and cognitive issues, Terri also argues she should be reevaluated before spousal support is terminated. According to Terri, the court "should not be allowed to put a time frame on spousal support of 24 months without mandatory testing." But Terri has not demonstrated she has a permanent medical condition or disability preventing her from all types of employment. In any event, while we are sympathetic to her challenges and the court could have continued support beyond 2023, it was not required to do so. (In re Marriage of Dietz (2009) 176 Cal.App.4th 387, 398 ["'"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"'"].)
Terri further claims the parties' adult son "aged out of the [treatment facility where he was living] in Texas a few years ago and [Glenn] is not [their son's] Conservator." She adds that social security income payments covered their son's living expenses. None of these arguments establish the court erred by finding Glenn "continues to contribute well over $500 per month to financially support" their son. Finally, Terri argues the court did not allocate adequate time for the hearing on the RFO. To the contrary, the court indicated it would allocate an hour for the hearing, and Terri provides no argument as to how this was insufficient. In short, Terri has not demonstrated the court based its order on any mistake of fact.
DISPOSITION
The order is affirmed. The parties shall bear their own costs on appeal.
WE CONCUR: O'LEARY, P. J. MOTOIKE, J.