Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RID204811. Sharon J. Waters, Judge.
Honey Kessler Amado for Appellant.
Christopher C. Carter for Respondent.
OPINION
RICHLI J.
This case is sad proof that divorce typically leaves both parties worse off financially. Husband Steven Griffin and wife Teri Griffin entered into a stipulated judgment that required Steven to pay Teri $834 a month in spousal support. After the divorce, Steven’s income increased somewhat, by about $689 a month; he also cut his expenses by, among other things, moving from Redondo Beach to Bakersfield. Nevertheless, his income was barely sufficient to meet his expenses; he had to borrow from his 401(k) plan to pay his attorney fees. Wife Teri Griffin was even worse off. She suffered from mental and physical ailments that prevented her from working. She, too, cut her expenses, first by moving from a house to an apartment, and then by moving in with her parents. Even so, her expenses exceeded the stipulated spousal support.
Steven filed an order to show cause (OSC), seeking to reduce spousal support. (His counsel eventually conceded that his OSC had no merit.) Teri filed a responsive declaration, seeking to increase spousal support. After an evidentiary hearing, the trial court (1) increased spousal support to $2,000 a month, (2) made the increase retroactive, creating an arrearage totaling $23,320, and (3) awarded Teri $21,000 in attorney fees against Steven.
Steven appeals. We will hold that there was sufficient evidence — including the evidence that Steven’s income had increased — to support some increase in spousal support; however, there was insufficient evidence to support the amount of the increase. Accordingly, we will reverse the support award with directions to redetermine the amount of any increased support and to redetermine whether any such increase should be retroactive. However, we will also hold that there was sufficient evidence that Steven could pay the attorney fees awarded by borrowing from his 401(k). Accordingly, we will sustain the award of attorney fees. In light of our reversal of the support award, Steven’s other contentions are moot.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Preliminary Statement: The Evidence in the Record.
Preliminarily, we need to clarify what evidence we may — and may not — consider. The parties do not seem to understand that not everything in the record is necessarily evidence that can be used to sustain or to reverse the order appealed from. For example, Steven’s counsel repeatedly cites, as fact, statements in one of Steven’s own trial briefs. Elsewhere, however, she criticizes Teri’s counsel for indulging in the exact same practice, noting — correctly — that “a trial brief is not evidence.” (In re Zeth S. (2003) 31 Cal.4th 396, 413-414, fn. 11.)
The evidence before the trial court at the hearing on the OSC consisted of Steven’s declaration in support of his OSC, Teri’s responsive declaration, three experts’ reports regarding Teri’s medical and psychological condition, and the parties’ respective income and expense declarations. (See In re Marriage of McQuoid (1991) 9 Cal.App.4th 1353, 1359.) In addition, the trial court could take judicial notice of the stipulated judgment.
None of the other documents in the record were in evidence.
First, Teri’s trial exhibits (with two exceptions) were not in evidence. In this appeal, she filed a respondent’s appendix, including copies of some 10 exhibits. Steven moved to strike these exhibits, on the ground that they had never been admitted into evidence, refused, or lodged with the trial court. In response, Teri filed her counsel’s declaration that he had in fact lodged them on or before the date of the hearing.
Assuming that the exhibits were, in fact, lodged, they are properly part of the appellate record. (See Cal. Rules of Court, rules 8.122(b)(3)(B).) Two of them were experts’ reports that the parties had already stipulated “shall be admitted.” As far as the record reflects, however, the rest were never offered into evidence; a fortiori, the trial court never admitted any of them. Hence, we cannot rely on them as evidence supporting the order.
Teri points out that Steven never objected to any of her exhibits. But this begs the question; precisely because she never asked that they be admitted, Steven never had any reason or opportunity to object.
Second, Steven’s deposition was not in evidence. Seven months before the hearing, Teri filed a “notice of lodgement” of Steven’s deposition. (Capitalization omitted.) Yet again, however, it does not appear that she ever offered it into evidence or requested judicial notice of it at the hearing. Her trial briefs never referred to it. She never identified any particular portion of it as relevant to the issues before the trial court. Thus, the mere fact that it is sitting in the record does not mean that the trial court considered or was entitled to consider it.
Finally, the “exhibits” attached to the parties’ trial briefs were likewise not in evidence (again, with minor exceptions). They were not accompanied by a declaration or otherwise authenticated, and, as far as the record reflects, they were never offered into evidence.
The sole exceptions were some documents already subject to judicial notice, plus the judicially noticeable transcript of one earlier hearing.
Admittedly, the trial court itself muddied the record somewhat by stating that it had “accepted the representations of [c]ounsel as offers of proof.” This could be proper, provided the trial court decided the relevant issue against the party making the representation — i.e., if it decided that, even if the representation were backed up with actual evidence, it would still rule against that party. Such a representation could also be used as a concession or an admission against interest. However, the trial court could not properly decide the relevant issue in favor of the party making the representation. That would nullify the burden of proof, the substantial evidence standard of review, and, indeed, much of the Evidence Code.
We also note that both counsel had made numerous representations, in trial briefs and motions in limine, as well as in argument at the hearing. We have no way of knowing which specific representations the trial court had in mind. This makes appellate review considerably more difficult. Nevertheless, in our discussion of the facts and the evidence, we have attempted to comply with our own guidelines. Thus, in a few instances, we have treated a representation by counsel as either an offer of proof or an admission against interest.
Finally, Steven complains about the fact that there was an unreported chambers conference before the hearing. He asks us “to give some direction to trial courts about explaining the process and the likelihood that the chamber conference will include an analysis and discussion of the evidence between counsel and the court, which may resolve most of the controverted issues without a formal, evidentiary hearing.” Steven, however, was represented by counsel; it was his counsel’s job, not ours, to “explain[] the process.” If the chambers conference prejudiced Steven somehow, it was likewise his counsel’s job to object, to withdraw his waiver of a court reporter (see Code Civ. Proc., § 269, subd. (a)(1)), and to make a record of what had happened in chambers.
It should be noted that Steven’s appellate counsel did not represent him in the trial court.
Teri, for her part, claims that “the parties... stipulated to submit the case by... offers of proof in chambers....” Clearly the parties did not object to holding the unreported chambers conference. There is no indication, however, that they stipulated that it would replace an evidentiary hearing on the OSC. To the contrary, after the conference, the trial court went on to hold a formal hearing on the record. It even had both Steven and Teri sworn in, although their counsel ultimately never asked them any questions. Obviously, the trial court was aware of its obligation to hold a formal hearing. (See In re Marriage of Dunn (2002) 103 Cal.App.4th 345, 347-349; In re Marriage of Hall (2000) 81 Cal.App.4th 313, 319-321.) If there was a contrary stipulation — and if Teri wanted to be able to rely on it on appeal — it was her counsel’s job to place it on the record.
B. The Judgment of Dissolution.
Steven and Teri were married in August 1984. They had two children. One was still a minor when the divorce was filed, but both are now adults. For many years prior to the divorce, Teri suffered from severe depression, anxiety attacks, and a heart condition. As a result, she was unable to work outside the home.
In August 2003, the parties separated, and in April 2004, Steven filed this divorce proceeding. In December 2004, the trial court entered a status-only judgment dissolving the marriage. Later in December 2004, Steven married another woman, who had two children.
In March 2005, the trial court entered a stipulated judgment. The judgment required Steven to pay $834 a month in spousal support. On December 15, 2004, Teri had elected to have health insurance through COBRA. Accordingly, the stipulated support included $420.74 a month that was intended to cover Teri’s premiums for COBRA insurance. The judgment also provided: “As and for additional child and spousal support, [Steven] is ordered to maintain for the benefit of [Teri] so long as [Teri] is eligible, and the minor child, all medical, dental and hospital insurance available through employment... at little or no cost [and] to pay the premiums thereon....”
“The Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) mandates that certain employees and their dependents be offered the option of paying premiums to continue medical coverage for a limited time period after the termination of coverage under a group health plan. (29 U.S.C. §§ 1161-1167; 42 U.S.C. §§ 300bb-1 through 300bb-8.)” (In re Marriage of Henry (2005) 126 Cal.App.4th 111, 116, fn. 1.)
According to Teri, the actual premium ended up being $452.30.
The judgment recited: “The orders for support made herein above are based on the assumption or facts that [Steven]’s gross monthly income is $5174.00 and [Teri]’s gross monthly income is $1,170.00.[] A hardship for [Steven] in the amount of $778.00 is included above because of health insurance.”
In Teri’s case, this was imputed rather than actual income, calculated at minimum wage.
B. Steven’s OSC.
In February 2006, Steven filed an OSC asking the trial court, among other things, to reduce spousal support. In March 2006, Teri filed her responsive declaration. In it, she asked the trial court to increase spousal support. As changed circumstances, she asserted that Steven’s income had increased. She also requested attorney fees.
On November 16, 2007, at a trial readiness conference, Steven requested a continuance of the trial date so that he could obtain a vocational examination of Teri. The trial court denied the continuance, stating: “... I don’t feel it’s appropriate to delay [the] issue of a possible increase in spousal support at this late stage to do a vocational examination. [¶] However, after this matter is concluded, of course, the Court continues to have jurisdiction on these issues of spousal support and I would at that time entertain, if you feel it’s appropriate, a motion or an OSC for a vocational assessment and a subsequent request to modify support downward based on the results of that vocational exam.”
On December 3, 2007, the court held a hearing on the OSC. After hearing further argument, it awarded Teri spousal support of $2,000 a month, retroactive to April 1, 2006. This resulted in an arrearage of $23,320. It explained that the amount was “based on the evidence and considering all of the [Family Code section] 4320 factors that apply in this case....” “It keeps [Teri] on the low side of middle income... for a single individual. It may be on the high side of low income[,] for that matter. I’m prepared to say that this amount is going to allow her to enjoy the marital standard of living.”
It told Teri: “[Y]ou do have some adults living with you, both your parents who can contribute towards the monthly expenses, as well as two children.... So I think you have some adults that can help defray some of your living expenses, which is why your request for almost $3,000 in spousal support was not granted. And I kind of came up with a midway point, a number that I’m comfortable with. I know Mr. Griffin doesn’t feel he can pay it, but I think he can and hope [he] will.”
As changed circumstances, it cited Steven’s additional income, “as well as the fact that the COBRA will be terminating....” It refused to impute any income to Teri, explaining: “I agree that [Teri] wasn’t working at the time that agreement was reached and remains not working. What I don’t know is whether either of the attorneys were cognizant of the extent of her disabilities.... [¶]... [¶] [F]or me to impute any income requires a showing that there is an earning capacity, what that earning capacity is and that there are jobs available. And while I’m very comfortable when making temporary spousal support awards... to impute minimum wages..., in a post judgment situation, I believe it’s much more appropriate to require actual evidence of earning capacity.... [¶] For those reasons and contrary to the agreement — and I understand the parties when they negotiated their original support orders... did impute minimum wage, but I’m not included to impute minimum wage at this point....”
The trial court also awarded Teri $21,000 in attorney fees. Thus, the arrearage plus the attorney fees totaled $44,320. The court ordered Steven to pay $10,000 of this as a lump sum by February 1, 2008. It also ordered him to pay half of any tax refund he received for tax years 2007 and 2008 toward this total. It ordered him to pay the rest at the rate of $500 a month, starting on February 1, 2008.
In connection with this appeal, Steven filed a petition for writ of supersedeas. In July 2008, we granted the petition in part and denied it in part, stating: “Insofar as [Steven] seeks relief from the order increasing spousal support to $2,000, the petition is denied. However, insofar as the order requires payment of accrued arrearages and attorney fees, the petition is granted and enforcement of the order in that respect is stayed.”
II
THE STATE OF THE PLEADINGS
Steven contends that Teri’s pleadings did not adequately request an increase in spousal support and did not allege any changed circumstances. He forfeited this contention, however, by failing to raise it below. “[E]ven though a [pleading] is defective in some particular, if the case is tried on the theory that it is sufficient and evidence accordingly is received without objection, the unsuccessful party cannot later effectively contest the sufficiency of the pleading. [Citations.]” (McClure v. Donovan (1949) 33 Cal.2d 717, 731-732.)
Even if not forfeited, the contention lacks merit. It was Steven who filed the original OSC. However, “[i]n a hearing on an order to show cause,... the responding party may seek affirmative relief alternative to that requested by the moving party, on the same issues raised by the moving party, by filing a responsive declaration....” (Fam. Code, § 213, subd. (a).)
In her responsive declaration, Teri stated, “I do not consent to the order requested,” adding, “I consent to the following order: Support calculation to include [Steven]’s increased salary.” (Italics added.) She recited facts tending to show that his income had increased. She concluded: “I therefore respectfully request that the court modify spousal support to reflect [Steven]’s actual earnings....” This was adequate to give notice of the relief that she was requesting and the grounds on which she was requesting it. (Brody v. Kroll (1996) 45 Cal.App.4th 1732, 1736.)
III
TERI’S FAILURE TO FILE A CURRENT INCOME AND EXPENSE DECLARATION
Steven contends that the trial court’s order is not supported by a sufficiently current income and expense declaration from Teri.
At one point, the hearing on the OSC was set for February 27, 2007. On February 9, 2007, Teri filed an income and expense declaration. Thereafter, the hearing was continued several times until it was eventually held on December 3, 2007. Teri did not file another income and expense declaration.
Rule 5.128(a) of the California Rules of Court (rule 5.128(a)) provides: “A current Income and Expense Declaration... must be served and filed by any party appearing at any hearing at which the court is to determine an issue as to which such declarations would be relevant. ‘Current’ is defined as being completed within the past three months providing no facts have changed.” (Italics omitted.) We may assume, without deciding, that this requires income and expense declarations to be current not just when an OSC is filed, but also when the OSC is heard. (Cf. In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 574-576 [so construing local rule].)
The rule, however, does not prescribe any penalty for its violation. Certainly the trial court could have denied Teri’s request for increased support on this ground. (In re Marriage of Tydlaska, supra, 114 Cal.App.4th at pp. 575-576.) This does not mean, however, that it had to deny the request — especially as Steven never objected on this ground in the trial court.
In Burkle v. Burkle (2006) 144 Cal.App.4th 387, the court held “that filing an income and expense declaration was not a jurisdictional requirement for an award of fees under [Family Code] section 271, which ‘is in the nature of a sanction.’ [Citation.] While the court must take into consideration all evidence concerning the parties’ incomes, assets and liabilities, the only stricture imposed by [Family Code] section 271 is that the sanction may not impose ‘an unreasonable financial burden’ on the party sanctioned. The party requesting the award ‘is not required to demonstrate any financial need for the award.’ [Citation.]... Accordingly, it is difficult to discern any purpose for requiring [the moving party] to file a declaration, or any justification for finding the requirement jurisdictional.” (Id. at p. 403.)
Admittedly, we are dealing with an increase in spousal support, not an award of attorney fees. Nevertheless, in Burkle, the court acknowledged that, even in connection with a motion for attorney fees, “the court must take into consideration all evidence concerning the parties’ incomes, assets and liabilities....” (Burkle v. Burkle, supra, 144 Cal.App.4th at p. 403.) In other words, rule 5.128(a) applies to such a motion and requires the moving party to file an income and expense declaration, because the declaration “would be relevant.” Thus, Burkle stands for the proposition that a violation of rule 5.128(a) is not jurisdictional.
Because the rule violation was not jurisdictional, Steven forfeited it by failing to raise it below. We recognize that insufficiency of the evidence can be raised for the first time on appeal. (People v. Butler (2003) 31 Cal.4th 1119, 1126 & fn. 4.) Here, however, Teri’s February 9, 2007, income and expense declaration was substantial evidence. A declaration that is 90 days old is substantial evidence under rule 5.128(a); it does not suddenly become insubstantial on the 91st day, or even, as here, 10 months later.
We therefore conclude that Teri’s failure to file a current income and expense declaration is not grounds for reversal.
IV
CHANGED CIRCUMSTANCES
Next, Steven contends that there was insufficient evidence of a material change of circumstances to support an increase in spousal support. Alternatively, he also contends that there was insufficient evidence to support an increase in the amount of $2,000 a month.
A. Applicable Legal Principles.
“[A] spousal support modification may be granted only if the party seeking the modification shows a material change of circumstances since the most recent order. [Citations.] A material change of circumstances is required even if the prior amount is established by agreement. [Citations.] [¶] Absent a change of circumstances, a motion for modification would be nothing more than an ‘impermissible collateral attack on a prior final order.’ [Citations.]” (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2008) ¶ 17:135, p. 17-32.17.)
“In exercising discretion whether to modify a spousal support order, ‘the court considers the same criteria set forth in [Family Code] section 4320 as it considered when making the initial order.... [Citation.] These factors include the ability of the supporting party to pay; the needs of each party based on the standard of living established during the marriage; the obligations and assets of each party; and the balance of hardships to each party. [Citation.]’ [Citation.]” (In re Marriage of Bower (2002) 96 Cal.App.4th 893, 899.)
“‘Appellate review of orders modifying spousal support is governed by an abuse of discretion standard, and such an abuse occurs when a court modifies a support order without substantial evidence of a material change of circumstances.’ [Citation.]” (In re Marriage of Lautsbaugh (1999) 72 Cal.App.4th 1131, 1133.) “‘In exercising its discretion the trial court must follow established legal principles and base its findings on substantial evidence. [Fn. omitted.] If the trial court conforms to these requirements its order will be upheld whether or not the appellate court agrees with it or would make the same order if it were a trial court.’ [Citation.]” (In re Marriage of West (2007) 152 Cal.App.4th 240, 246, brackets in original.)
Initially, Teri asserts that, because it was Steven who filed the OSC, and she was merely the responding party, “[a]rguably” she did not have the burden of proving a material change of circumstances. Ordinarily, “the burden of proof for the modification of a support order is on the moving party.” (In re Marriage of Bardzik (2008) 165 Cal.App.4th 1291, 1303, fn. 10.) Thus, the extent that Steven was requesting a reduction in support, he had the burden of proof. However, as we noted in part II, ante, in her responsive declaration, Teri affirmatively requested an increase in support. Thus, to that extent, she had the burden of proving a change of circumstances.
Teri also suggests that, because the original judgment was stipulated, and the trial court had never made any findings regarding the factors listed in Family Code section 4320, the changed circumstances requirement did not apply. This is not the law. Quite the contrary, “the ‘changed circumstances’ standard equally applies to modifications of stipulated spousal support (or support required by a marital settlement agreement).” (Hogoboom & King, Cal. Practice Guide: Family Law, supra, ¶ 17:140, p. 17-32.20.) “The court may not simply reevaluate the spousal support award.” (In re Marriage of Aninger (1990) 220 Cal.App.3d 230, 238.)
Teri also takes the position that “the [t]rial [c]ourt cannot look outside[] the four corners of the parties[’] stipulated [judgment]... to see what external factors existed at that time....” In essence, she claims that she is entitled to a presumption of changed circumstances, unless the judgment itself rebuts that presumption. Again, this is not the law. A dissolution judgment is deemed to be based on all of the circumstances then existing, even if they were not actually litigated. (In re Marriage of Mulhern (1973) 29 Cal.App.3d 988, 992.) “In other words if the circumstances in question existed at the time of the previous order those circumstances presumably were considered when the previous order was made and bringing them to the court’s attention years later does not constitute a ‘change’ in the circumstances.” (In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 47, fn. omitted.)
Teri’s burden of proving changed circumstances necessarily included the burden of proving what the circumstances were at the time of the stipulated judgment. (In re Marriage of Hoffmeister (1987) 191 Cal.App.3d 351, 362-364.) Both parties were free to introduce evidence of those circumstances; for example, they could introduce their income and expense declarations from the time of the stipulated judgment. (See, e.g., In re Marriage of Smith (1990) 225 Cal.App.3d 469, 496; In re Marriage of Norvall (1987) 192 Cal.App.3d 1047, 1062.)
B. Particular Changed Circumstances.
The trial court found three types of changed circumstances. We discuss these seriatim.
1. The termination of Teri’s health insurance coverage under COBRA.
First, the trial court found that “COBRA will be terminating and [Teri] will have to assume that responsibility.” According to Teri, COBRA coverage lasted 36 months and thus terminated in December 2007.
There was no actual evidence of this. Steven testified that COBRA coverage lasted 18 months and terminated in July 2006. We may take judicial notice, however, that in cases of divorce, COBRA coverage does indeed last 36 months. (, as of April 23, 2009.)
Steven argues that this was not a true changed circumstance, for two reasons: (1) when the stipulated judgment was entered, the parties already knew that COBRA coverage was time limited; and (2) there was no evidence that Teri would have to pay any more for non-COBRA health insurance than she was already paying for COBRA health insurance.
We agree with both points. On the first point, Teri essentially conceded that the parties knew when they entered into the stipulated judgment that COBRA coverage would last for only three years. In his OSC, Steven had asked the trial court to reduce support, partly because Teri’s COBRA coverage was going to end and (he claimed) she could obtain replacement coverage at a lower rate. In opposition, Teri argued that: “[Steven] was aware [Teri] would be entitled to COBRA benefits... for a period of 36 months when he entered into the stipulated judgment.... Thus, nothing in [Steven]’s declaration provides any facts which would warrant grounds as ‘change of circumstance.’” (Italics and capitalization added.)
On the second point, Teri’s counsel conceded that non-COBRA health insurance was available for $370 a month. He argued that it would be more for an insured with preexisting conditions; however, he introduced no evidence of this. He also conceded that “[t]he actual monthly payment will not be known until [Teri’s] application and medical conditions are considered by the provider.”
One of the exhibits that Teri lodged included a list of premium rates for health insurance through Blue Cross. As already noted, Teri never introduced this exhibit. In any event, it is impossible to tell from the list which of these premium rates — if any — would apply to Teri.
Accordingly, the trial court erred by finding that the termination of COBRA coverage was a changed circumstance. In arguing to the contrary, Teri seems to assume that, until COBRA coverage terminated, Steven was paying her premiums directly, in addition to the $834 a month in spousal support. But not so. Steven testified that the spousal support included an amount intended for Teri to use to pay the premiums. Moreover, Teri’s own income and expense declaration indicated that Steven was paying her only $834 in support a month, out of which she was paying her own health insurance premiums.
Another one of the exhibits that Teri lodged but never introduced would also have shown that she was paying the COBRA premiums herself.
Apparently Teri has in mind the provision of the stipulated judgment that required Steven to keep certain medical insurance for Teri in effect and “to pay the premiums thereon.” This provision, however, applied only to any medical insurance that was “available through employment... at little or no cost....” (Italics added.) Thus, it did not apply to Teri’s COBRA premiums, which exceeded $400 a month.
Teri therefore argues that she had “at least” $7,000 per year in medical expenses that were not covered by health insurance. The trial court apparently did not rely on this as a change of circumstances — and for good reason. There was no evidence that Teri actually had unreimbursed medical expenses in this amount. In support of this argument, she cites one of the exhibits that she lodged but never introduced. She also cites her own counsel’s written and oral arguments below. Again, “[i]t is axiomatic that the unsworn statements of counsel are not evidence. [Citations.]” (In re Zeth S., supra, 31 Cal.4th at pp. 413-414, fn. 11.)
In the same brief, however, she asserts that this amount was $4,600 per year.
More important, there was no evidence that the parties did not contemplate these expenses when they entered into the stipulated judgment. Indeed, even if we could consider the unadmitted exhibit Teri has cited, all it showed was that her annual medical expenses, including premiums for COBRA coverage, totaled about $7,000. Those premiums were expected; they did not represent a change of circumstances.
The stipulated judgment was based on the parties’ “final” income and expense declarations (Fam. Code, § 2105, subds. (a), (d)(2)), which they exchanged in April 2004. In theory, comparing Teri’s income and expense declarations from 2004 and 2007 would show whether her unreimbursed medical expenses had increased. Her 2004 declaration, however, is not in the record. Her earliest declaration in the record is from 2006 and thus irrelevant to her unreimbursed medical expenses in 2004.
2. Teri’s medical condition.
The stipulated judgment had imputed income to Teri at minimum wage. The trial court, however, refused to impute any income to her. Once again, however, there was no evidence that Teri’s medical condition — and hence her ability to work — had worsened or otherwise changed since the stipulated judgment. In a trial brief, she affirmatively represented that she had suffered from all of the “a[il]ments and [af]flictions” shown in the experts’ reports “for over 13 years.” Moreover, in this appeal, she concedes that “[t]here was no evidence as to what medical conditions or severity thereof existed at the time of” the stipulated judgment.
Teri claims that “[t]here was no evidence” of her mental or physical health as of the date of the stipulated judgment. That is simply not true. According to the experts’ reports, she had a “more than a decade long history of severe depression, anxiety, panic attacks [and] agoraphobia....” An expert who had not seen her since 2004 reported that she suffered from “a parasitic infection, candida, vir[al] infections, [m]itra[l] valve prolapse, dietary malabsorption, universal allergic reactions, low energy [and] fatigue....” One expert stated that “over the last 11 to 13 years she never has had an extended time of physical and/or mental well-being long enough to satisfy most employment related expectations.”
Some of the exhibits that Teri lodged but never introduced related to her medical condition as of 2005 and 2006. Even if they had been admitted, however, they would not have shown that any of her medical problems were new.
And indeed, the trial court did not find that Teri’s medical condition had changed. Rather, it reasoned that, when the stipulated judgment was entered, her attorneys may not have been “cognizant of the extent of her disabilities....” We need not decide whether Teri’s knowledge of her own medical condition at the time of the stipulated judgment would have to be imputed to her counsel. In this case, as we discussed in part IV.A, ante, Teri had the burden of proving changed circumstances. Thus, in the absence of evidence that her counsel was unaware of her medical condition when the stipulated judgment was entered — and there was no such evidence — the trial court could not find that her counsel’s current awareness was a changed circumstance.
3. An increase in Steven’s income.
Finally, the trial court also found that Steven’s income had increased. The stipulated judgment recited that it was based on Steven having a gross monthly income of $5,174. By the time of the hearing, according to Steven’s most recent income and expense declaration, his gross monthly income had increased to $5,863 — i.e., by $689.
Steven concedes that his income had increased, but he argues that the increase was not material, “based upon his limited earnings and the obligations he faces in both paying his own minimal living expenses and paying the stipulated spousal support....” We cannot agree. The increase, standing alone, meant that he had more money that he could share with Teri. If his own expenses had also increased (which he does not argue), that would be another changed circumstance that the trial court could also take into account; however, it would not mean that the increase by itself was not material.
As Steven notes, even if his income had increased, Teri still was not entitled to increased support unless she also showed that “either (1) the prior order, when made, was not sufficient to meet... her reasonable needs at that time..., or (2) the reasonable cost of satisfying those needs ha[d] since increased.” (Hogoboom & King, Cal. Practice Guide: Family Law, supra, ¶ 17:155, p. 17-37, italics omitted; see also In re Marriage of Smith, supra, 225 Cal.App.3d at pp. 482-483 & fn. 3, 487; In re Marriage of Hoffmeister (1984) 161 Cal.App.3d 1163, 1173-1174.)
There was sufficient evidence, however, that one or the other of these conditions was met. Admittedly, for the reasons already discussed, Teri failed to show that the cost of satisfying her needs had increased. Moreover, because her 2004 income and expense declaration is not in the record (see fn. 12, ante), we cannot tell what her reasonable needs were at the time of the stipulated judgment; hence, we cannot say that the support ordered in it was insufficient to meet those needs.
However, we do have her income and expense declarations from 2006 and 2007. According to her 2006 declaration, her monthly expenses totaled $3,579. This included $1,470 in mortgage payments, $452 in health insurance premiums, $450 in groceries and household supplies, and $405 in credit card payments. At the same time, her only income was the $834 a month that Steven was paying in spousal support.
According to her 2007 declaration, instead of making mortgage payments, she was paying $1,275 in rent. While her health insurance premiums had increased to $518, her payments for groceries and household supplies had gone down to $350, and her credit card payments had gone down to $325. Thus, her total monthly expenses had gone down to $2,890. Even so, this still far exceeded the $834 a month that Steven was paying in spousal support. Sometime before trial, Teri admittedly left her apartment and moved in with her parents. Even assuming she paid them no rent, however, her living expenses still exceeded her spousal support.
It is not entirely clear how Teri was making up the shortfall. Her 2006 and 2007 income and expense declarations had indicated that she had no cash, real property, or other assets.
In sum, then, there was ample evidence that, as of 2006 and 2007, the spousal support awarded in the stipulated judgment was inadequate to meet Teri’s needs. Thus, there were two possibilities — either (1) the support award had been insufficient when made, or (2) Teri’s needs had increased. Although the record was inadequate to show which of these was true, it did show that one or the other had to be true.
We conclude that Teri met her burden of proving at least one relevant changed circumstance — that Steven’s income had increased. Accordingly, the trial court did not abuse its discretion by increasing spousal support. We therefore turn to the question of whether the trial court abused its discretion in fixing the amount of the increased spousal support.
C. The Amount of the Increased Support.
Preliminarily, Steven argues that the trial court failed to consider all of the statutory factors. He cites its comment that it had selected $2,000 as “a midway point.” However, it made this comment to explain to Teri why it was not awarding her the full $3,000 a month that she was seeking. It also commented that it had “consider[ed] all of the [Family Code section] 4320 factors that apply in this case....” It specifically indicated that it had considered the marital standard of living, Steven’s ability to pay, and the ability of Teri’s parents and children to contribute to her household expenses. Thus, the record fails to show that the trial court disregarded any of the statutory factors.
However, as already discussed above, the trial court erred by finding that the termination of Teri’s COBRA coverage represented a changed circumstance and also by refusing to impute any income to her. The only genuine changed circumstance shown by the record was that Steven was grossing $689 more a month. As Steven persuasively argues, this could not support an award to Teri of an additional $1,166 a month — two-thirds again as much as the increase, and payable out of net income!
Teri cites even higher income figures for Steven, based on his interim income and expense declarations filed in February 2006 and May 2007. These, however, included overtime, which, by the time of the hearing, was rarely, if ever, available to him. Hence, the trial court expressly declined to “factor in any overtime.” They also included a bonus that was not guaranteed and thus not properly included in his income for purposes of spousal support. (In re Marriage of Mosley (2008) 165 Cal.App.4th 1375, 1387.) Between May 2007 and the hearing in December 2007, Steven’s base pay was unchanged.
We do not mean to suggest that a modified support award must be ordered in lockstep — dollar for dollar and penny for penny — with the changed circumstances shown. The trial court was not merely permitted but required to consider all of the statutory factors listed in Family Code section 4320. Thus, for example, “even if [a party] shows a change of circumstances..., modification is not necessarily mandated.... [Citation.]” (In re Marriage of Stephenson (1995) 39 Cal.App.4th 71, 78.) At the same time, however, “the trial court’s discretion to modify the spousal support order is constrained by the terms of the marital settlement agreement.” (In re Marriage of Aninger, supra, 220 Cal.App.3d at p. 238.) “[T]he trial court could not simply discard the negotiated agreement and design a new one more to its liking.” (Id. at p. 241.) Here, the huge discrepancy between the increase ordered and the only changed circumstance shown proves that the trial court must have considered other irrelevant circumstances.
Although the increase to $2,000 was excessive, the trial court, in its discretion, could have awarded some increase. Steven does not claim that he would have been unable to pay increased support in some amount. According to his most recent income and expense declaration, his gross pay was $1,353.08 per week. From this, $221.34 was withheld for taxes, and $208.50 was withheld to pay spousal support at the level originally ordered in the stipulated judgment. This left him with $923.24 per week, or almost exactly $4,000 a month.
Steven’s other monthly expenses totaled $5,310. This included a mortgage payment of $2,150, $419 in real property taxes, $78 in homeowner’s insurance, $187 in utilities, and $376 in health insurance. Most of his more readily reducible expenses were already modest — for example, $70 for eating out, $58 for clothes, and $60 for entertainment, gifts, and vacations.
Some of these expenses, however, were incurred because Steven was living with his new wife and her two children. For example, he was paying $100 a month for his wife’s child’s orthodontia. The trial court was forbidden to consider his new wife’s income. (Fam. Code, § 4323, subd. (b).) At the same time, it was also forbidden to consider any additional expenses resulting from the remarriage; it was required to consider only Steven’s part of any shared expenses. (In re Marriage of Romero (2002) 99 Cal.App.4th 1436, 1445.) Thus, the trial court would not have erred if it had attributed as little as one-fourth of the mortgage and similar expenses to Steven (although we are by no means holding that it was required to do so). (See Id. at pp. 1445-1446 [“the court must determine what expenses are reasonable based only on husband’s net monthly income.... [W]here the actual numbers would produce an inequitable result, the trial court must exercise greater discretion based on all the available facts and every appropriate consideration” (fns. omitted)].) Using this approach, the trial court could have arrived at a figure for Steven’s expenses that was substantially below his net income.
This consisted of $1,300 in child support from her former husband (paid somewhat erratically).
Accordingly, we will remand for reconsideration of Teri’s request for increased support.
V
SUPPORT ARREARAGE AND ATTORNEY FEES
Steven contends that the trial court erred by making the increased support retroactive, thus creating an “instant” arrearage, and also by awarding attorney fees against him. Basically, he argues that both orders were an abuse of discretion because he did not have the ability to pay.
Any award of retroactive support had to take into consideration Steven’s ability to pay. “[T]here [are no] explicit statutory standards controlling decisions about retroactivity. Absent statutory direction, the trial court’s exercise of its discretion regarding retroactivity of temporary support must be guided by two overriding concerns: the supported spouse’s need and the supporting spouse’s ability to pay. In short, ‘the trial court should tailor its award on the basis of the equitable rights of the parties in light of their economic needs and abilities’ during the period for which a retroactive increase is sought. [Citation.]” (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 312-313.)
Likewise, the trial court could not award attorney fees unless it found the ability to pay. (Fam. Code, § 270 [“[i]f a court orders a party to pay attorney’s fees or costs under this code, the court shall first determine that the party has or is reasonably likely to have the ability to pay”].)
The statutory basis for the trial court’s award of attorney fees is unclear. It may have been a form of sanctions, under Family Code section 271. Alternatively, it may have been a form of support, under Family Code section 2030. Teri never offered any statutory basis whatsoever for her fee request. In the trial court, Steven seemed to assume that the fees were being sought as sanctions. In this court, however, he seems to assume that they were awarded as support.
We see no point to deciding, in this appeal, whether Steven had the ability to pay either an arrearage or attorney fees out of his monthly income. That question depends heavily on the amount of support ordered, which not only has to come out of his monthly income first, but will also determine the amount of the arrearage. In part IV.C, ante, we held that the trial court’s award of $2,000 a month was excessive. The trial court has yet to determine, on remand, what lesser amount of support would be appropriate and whether Steven has the ability to pay that lesser amount. Moreover, Steven’s income and expenses may well have changed while the appeal was pending. We therefore decline to render a hypothetical opinion on any of these issues.
By contrast, the question of whether Steven had the ability to pay attorney fees out of the money he had in his 401(k) plan is squarely before us. He argues that the trial court could not find an ability to pay the attorney fees based on the money in his 401(k) plan. If we hold otherwise, we may affirm the award of attorney fees. Moreover, our discussion of this issue will provide some guidance for the trial court on remand as to whether it could find an ability to pay an arrearage based on the money in the 401(k) plan.
Steven’s only significant asset was nearly $50,000 in a 401(k) plan. He was contributing $26 or $27 a week (about two percent of his gross income) to the plan. He had paid his own attorney $5,000 in fees by borrowing from the 401(k); he was paying this loan back at the rate of $24.40 a week over five years.
In ordering Steven to pay $10,000 of the arrearage and the attorney fees as a lump sum, the trial court remarked: “I know you have a 401-K, Mr. Griffin. I don’t know how much is in there, but I’m hoping you have at least [$]10,000 in there....”
“[T]rial courts possess broad discretion when setting or modifying permanent spousal support about whether to consider as income contributions to individual retirement plans by a participant and accruals therein not withdrawn. The Legislature has wisely left this within the court’s discretion. It is easy to foresee cases where contributions and accruals are best not considered as income available to pay permanent spousal support. In other cases, it may be appropriate to consider all or part of either or both as being available for permanent spousal support. The trial court is in the best position to determine under the facts and circumstances of each case how its discretion should be exercised, given the dual, but possibly conflicting, public policies of awarding spousal support where appropriate and of encouraging citizens to save for their retirement.” (In re Marriage of Olson (1993) 14 Cal.App.4th 1, 12, fns. omitted.)
“[W]ithdrawals made prior to the time the participant reaches age 59 1/2, in most cases,... are subject to a 10 percent penalty because of withdrawal prior to normal retirement age. For this reason, it would appear to be an abuse of discretion to order an amount of spousal support based on funds in a retirement plan which if withdrawn, would be subject to this penalty.” (In re Marriage of Olson, supra, 14 Cal.App.4th at pp. 12-13.)
Steven therefore argues that the trial court abused its discretion by assuming that he could make the $10,000 lump-sum payment by withdrawing funds from his 401(k). The trial court, however, could reasonably find that Steven could make this payment by borrowing from his 401(k). There was evidence that he had already borrowed from it, and no evidence that he could not borrow an additional $10,000. For the reasons discussed in part IV.C, ante, the trial court could also reasonably find that he had the ability to pay the debt service on such a loan, which would be approximately $48.80 a week.
We therefore reject Steven’s challenge to the trial court’s award of attorney fees. We express no opinion on its award of a support arrearage. If, on remand, the trial court decides to award an arrearage again, it must take into account, along with all of the other factors specified in Family Code section 4320, Steven’s ability to pay the arrearage; if it finds an ability to pay based, in whole or in part, on his ability to borrow from his 401(k) plan, it must take into account, along with other factors, his ability to pay the debt service on such a loan.
V
DENIAL OF A CONTINUANCE
Finally, Steven contends that the trial court erred by denying a continuance, which he had requested so that he could obtain a vocational examination of Teri.
Because we are reversing the order appealed from on other grounds (see part IV.C, ante), this issue is moot. It is unlikely to recur on remand, because Steven will have had more than enough time to obtain the desired vocational examination.
VI
DISPOSITION
The order appealed from, to the extent that it orders Steven to pay Teri increased support in the amount of $2,000 and to the extent that it orders Steven to pay a support arrearage based on this increased amount, is reversed.
The order appealed from, to the extent that it orders Steven to pay Teri $21,000 in attorney fees, is affirmed. Our stay of that portion of the order shall be lifted when our remittitur issues. Consistent with the payment schedule ordered by the trial court, Steven shall pay $10,000 of this amount within 60 days after the remittitur issues and shall pay the remainder at the rate of $500 a month by the first of every month thereafter.
In the interests of justice, each side shall bear its own costs.
We concur, HOLLENHORST Acting P.J., McKINSTER J.
We also note, however, that even if we were to compare her 2006 and 2007 declarations, they would not justify an increase in support. In her 2006 declaration, her total monthly expenses were $3,579. In her 2007 declaration, her total monthly expenses were only $2,890. Thus, even assuming her unreimbursed medical expenses had increased, her overall need for support had decreased.
Curiously, in her 2006 declaration, she seems to have listed an amount for “[h]ealth-care costs not paid by insurance,” but then whited it out. The remaining expenses added up to only $3,029, not the listed total of $3,579, strongly suggesting that the whited-out figure was $550. In her 2007 declaration, the amount listed for health-care costs not paid by insurance was $600 — not significantly more than $550.
Steven claimed that, actually, in 2006, Teri had realized over $100,000 from the sale of her condominium, and as of 2007, she still had at least $45,000 in a certificate of deposit. However, he introduced no evidence of this.
Teri then admitted that she had sold her condominium and that she had once had the certificate of deposit; she claimed that she had used this cash to pay her living expenses and that by the time of trial she was down to her last $4,000. Yet again, however, there was no evidence of this.
Fortunately, it does not appear that the distinction makes any difference for purposes of our review, as Steven’s sole challenge to the award is that the evidence showed that he did not have the ability to pay. If only out of an excess of caution, we note that he is not arguing that (1) he lacked notice that the fees were being sought under Family Code section 271, (2) there was insufficient evidence of conduct that was sanctionable under Family Code section 271, or (3) there was insufficient evidence to support the amount of the fee award.