Opinion
E032492.
10-15-2003
In re the Marriage of KATHLEEN and DEZI BALINT. KATHLEEN BALINT, Respondent, v. DEZI BALINT, Appellant.
Law Offices of Robert Dourian, Daniel W. Rinaldelli; Tuckerman & Thompson and Richard J. Tuckerman for Appellant. Law Office of Christopher R. Abernathy and Christopher R. Abernathy for Respondent.
Dezi Balint[] appeals from an order denying his request to modify his spousal support obligation. He claims that the trial court erred when it failed to apply the presumption of reduced need embodied in Family Code section 4323.[] We disagree and affirm.
We refer to the parties to the dissolution action by their first names, not out of any familiarity or disrespect, but because this is the preferred practice in family law cases. (See, e.g., In re Marriage of Schaffer (1999) 69 Cal.App.4th 801, 803, fn. 2.)
Further statutory references will be to the Family Code.
FACTS AND PROCEDURAL HISTORY
Dezi and Kathleen were married on May 25, 1969, and separated on September 1, 1988, nearly 20 years later. On February 9, 1995, after a trial, the court entered an order that Dezi should pay Kathleen $1,250 per month spousal support. On February 23, 1996, Dezi filed an order to show cause to terminate spousal support on the ground that Kathleen was living with her boyfriend and therefore there was no longer any need for Dezi to pay support. The statement of decision, issued on October 10, 1996, indicated that despite Dezis argument that he had shown an increase in the time spent cohabiting, which he claimed constituted change meriting alteration of support, he had failed to show a significant change in circumstances. The trial court denied the requested modification. Specifically, it ruled that "[Kathleen], even after allowances for some contribution by the co-habitant, shows a need for support equal to the actual support levels set in 1995. . . . At trial in this matter the testimony was that the co-habitant resided with [Kathleen] at least 30% of the time and contributed somewhat to her life style. The current testimony shows a 100% cohabitation but shows absolutely no difference in the contributions made to [Kathleen] and her expenses." Dezis motion for a new trial was denied on jurisdictional grounds as untimely, and his motion to enter a new order was granted as to the calculation of arrears owed.
On March 24, 1998, Dezi filed another order to show cause for modification of spousal support based both upon a reduction in his income and upon Kathleens having become employed. The hearing was continued many times. In the interim, on February 11, 1999, Dezi filed a supplemental declaration indicating that not only had Kathleens income increased from her employment, but since she was cohabiting with her boyfriend, there was a rebuttable presumption of reduced need for support. Then, on July 26, 2001, before any hearing on his prior petition, Dezi filed another order to show cause seeking termination of spousal support on the ground that continuation of the wage assignment was causing him great financial hardship. Both matters were heard and taken under submission on July 17, 2002. At that time, the parties stipulated that the trial court would hear argument, and considering the status of the file, the declarations of the parties, and the state of the law, would make an initial ruling whether a material change of circumstance had been shown. On July 31, 2002, the trial court issued its ruling denying any modification of support on the ground that since Kathleens cohabitation had already been considered by the court twice before, the simple fact of cohabitation was not a changed circumstance. This appeal followed.
DISCUSSION
The only argument Dezi supports on appeal is that the trial court erred in failing to apply section 4323, which provides, in part, "[e]xcept as otherwise agreed to by the parties in writing, there is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabiting with a person of the opposite sex." (Id., subd. (a)(1).) He asserts that Kathleens admission that she was cohabiting with her boyfriend 100 percent of the time mandated the application of that presumption and its burden-shifting effect.
We disagree. Contrary to Dezis suggestion, neither Kathleen nor the trial court erred in finding that the prior orders precluded the application of the presumption of decreased need. The record demonstrates that the original order in 1995 took into account that Kathleen cohabited 30 percent of the time and received some contribution to her lifestyle as a result. It is therefore reasonable for us to conclude that the trial court applied section 4323 at the time of its initial award.
Even if there was evidence in the record from which we could conclude that section 4323 was not applied in 1995, Dezi could reasonably have argued that the presumption should have been applied when he sought a modification of that order in 1996. This argument would have been supported by the changed circumstance that Kathleen was then cohabiting 100 percent of the time. (& sect; 4323, subd. (a)(1) [court may modify or terminate spousal support upon determining that cohabitation circumstances have changed].) It does not appear that the presumption was applied by the trial court at that time as it did not shift the burden to Kathleen to demonstrate that her needs had not changed as a result of the increase in cohabitation, but observed that Dezi had not shown her decreased need.[] However, Dezi did not contest the trial courts 1996 ruling. That failure dooms this appeal.
We observe that the trial court did find that Kathleen showed a need for support equal to that awarded in 1995, "even after allowances for some contribution by the co-habitant." Thus, had the section 4323 presumption been applied, it appears that the trial court would have found that Kathleen had met her burden of proof.
Section 4323s presumption of reduced need, and its concomitant shifting of the burden does not continue to apply every time the supporting spouse seeks a modification. Rather, by its own terms, it applies when there has been a change in the circumstances of cohabitation. (§ 4323, subds. (a)(1) & (c).) Thus, as the moving party, it was Dezis burden to demonstrate a change of circumstances meriting the relief he sought. (In re Marriage of Stephenson (1995) 39 Cal.App.4th 71, 77.) In 1996 it was established that Kathleen was cohabiting 100 percent of the time. It cannot get any better, from Dezis perspective, than 100 percent cohabitation. Therefore, his ability to demonstrate a change in the circumstances of cohabitation that would work to his benefit no longer exists and he can no longer invoke section 4323 to shift the burden to Kathleen. In order to demonstrate a change of circumstance to support a modification of the prior order, Dezi must now show something more than continued cohabitation. He must show that Kathleens financial situation has improved, whether it be due to her efforts on her own behalf, or as the result of increased contributions from her cohabitant.
Contrary to Dezis assertion, there is no evidence in the record to demonstrate that Kathleens financial situation was, at the time of this order, improved over that which existed in 1996. We must indulge in evidentiary inferences that support the findings of the trial court, whether or not contradictory inferences exist. (Scottsdale Ins. Co. v. Essex Ins. Co. (2002) 98 Cal.App.4th 86, 92.) Therefore, we cannot conclude, as Dezi suggests, that Kathleens failure to explain how she survives on a negative income, or to list financial contributions from her cohabitant, necessarily implies that she has more financial resources than she did in 1996. Dezis own declarations have routinely claimed that his income was well below his expenses, and he did not explain how he managed to survive. If we must infer income to Kathleen as a result of her silence, so must we infer income to Dezi. The trial court did not err in basing its denial on a finding of no showing of a sufficient change in circumstances since the last order.
While the trial courts failure to apply section 4323 is the only supported argument on appeal, Dezi also suggests that the trial court erred in failing to recognize and implement the policy that a supported spouse become self-sufficient within a reasonable amount of time. (§ 4320, subd. (l).) He pointed out in his papers below that he had been paying support for 11 years, more than half the duration of the marriage. This argument is unavailing. First, section 4320, subdivision (l) specifically recognizes an exception for marriages of long duration, which this was. (§§ 4320, subd. (l), 4336.) Second, it specifically does not limit the trial courts discretion to fashion orders appropriate to the circumstances. (§ 4320, subd. (l).) The trial court made findings with respect to the parties demonstrated needs and abilities based upon a record to which the parties stipulated. The record supports those findings. Therefore, we cannot conclude that the trial court abused its discretion in denying the requested modification.
DISPOSITION
The order is affirmed. Kathleen to recover her costs on appeal.
We concur: HOLLENHORST, J. and GAUT, J.