Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. SPFSS44360 Deborah A. Daniel, Temporary Judge (pursuant to Cal. Const., art. VI, § 21) and John M. Pacheco, Judge.
Steven A. Becker for Appellant.
E. Toby Bowler for Respondent.
OPINION
Hollenhorst, J.
1. Introduction
Appellant Sandra K. Kavanaugh (Sandra) appeals a postjudgment order entered on March 10, 2009, reducing and ultimately terminating Sandra’s spousal support. The March 2009 order modified a 2002 dissolution judgment requiring Sandra’s former husband, Craig P. Kavanaugh (Craig), to pay her spousal support. Sandra and Craig were married for 12 and a half years and had one child, Reilly, born in August 1991. When Craig and Sandra separated in July 1998, Sandra was approximately 35 years old and Craig was a year older. At the time of the March 2009 order, Craig had been paying Sandra spousal and child support for over 10 years and Reilly was 17 and a half years old.
At the commencement of the hearing on Craig’s motion for modification of support in July 2008, Sandra had been unemployed for one year. But while the matter was pending, she was hired as a hotel sales manager earning a salary of $40,000 a year. Craig was employed at the time in a well-paying sales job, grossing $14,583 a month. In March 2009, the trial court ordered spousal support reduced from $4,065 to $2,000 a month, commencing January 1, 2009, with spousal support terminating on December 31, 2010, unless Sandra demonstrated by motion prior to that date, a compelling reason to extend the time period. The court further adopted the specific findings contained in the trial court’s October 2008 tentative decision.
The trial court’s order reducing child support is not at issue in this appeal.
Sandra contends on appeal the trial court erred in not requiring Craig to pay the originally ordered spousal support, which the parties stipulated Craig would be required to pay after expiration on February 1, 2008, of the period of time Craig was permitted to pay reduced support (21 months). Sandra further argues that the trial court abused its discretion in reducing and terminating spousal support without providing Sandra with advance notice that she faced termination of spousal support if she did not make sufficient efforts to become self-supporting. Sandra also argues there was insufficient evidence that she was capable of earning enough to maintain the marital standard of living, and there was no basis for terminating the court’s jurisdiction over spousal support.
We conclude the trial court failed to provide proper notice under In re Marriage of Gavron (1988) 203 Cal.App.3d 705, 711-712 (Gavron), before ordering reduction and termination of spousal support. We thus reverse the trial court’s March 2009 spousal support order. We further conclude there was no court error as concerns the stipulated support agreements. The remaining issues relating to the sufficiency of evidence and termination of jurisdiction are moot as a consequence of reversal of the spousal support order based on the failure to provide Gavron notice.
2. Facts and Procedural Background
Craig and Sandra were married in January 1986, separated in July 1998, and divorced in 2002, after 12 and a half years of marriage. The couple had one child, Reilly, born in August 1991. At the time of the support modification hearing, Reilly was 17, Sandra was 45 and Craig was 46 years old.
In July 2002, the court tried the issue of permanent spousal support. The trial court found that the marriage was a long-term marriage and that Sandra had not been diligent in becoming self-supporting after separation of the parties in 1998. The court also found that Sandra had been primarily a stay-at-home mother after Reilly’s birth in 1991. The court noted in its 2002 findings that Reilly was almost 11 years old and therefore the need for Sandra to stay home had diminished. The court concluded Sandra could reasonably earn $30,000 a year.
Family Code section 4336 provides a presumption that a marriage of 10 years or more is a marriage of long duration.
The court further found that Craig and Sandra’s marital standard of living was upper middle class and that Sandra would need $7,000 a month to maintain that standard of living. To achieve this standard of living, Sandra was awarded $4,065 in spousal support, “continuing until the death of either party, wife’s remarriage or further order of the court.” This amount was based on Sandra’s “presumed ability to earn at least $30,000 per year.” The court’s statement of findings and final order stated that “Wife is advised that the purpose of spousal support is to enable her to become self-supporting within a reasonable time.” The court also ordered Craig to pay $2,181 per month in child support.
At the time of separation in 1998, Craig was earning approximately $174,000 annually. At the time of the original support order in 2002, he was earning $296,902. At the time of the trial in 2002, Sandra was working approximately 25 hours a week, at $12.50 an hour, at her parents’ business, Redlands Sewing Center.
Sandra had known since April 1999 that her parents intended to sell the business. Nevertheless, she did not attempt to develop any other marketable job skills or complete a four-year college degree. Sandra had only a semester and a half left to complete her associate’s degree in communications.
In 2006, Sandra’s mother sold the sewing center business. The new owner agreed to allow Sandra to continue working at the sewing center at $200 a day or $25 an hour. After working for the new owner for about a year, Sandra was fired in July 2007, for failing to show up for work during her scheduled hours.
In the fall of 2007, Sandra took a computer class but dropped out after attending several classes. She did not take any other courses or training. Sandra remained unemployed for over a year, during which time she went on only two job interviews and was not hired. While the support modification matter was pending, Sandra was hired in August 2008 as a hotel sales manager.
Meanwhile, Craig’s salary declined after 2003, and in April 2006, he lost his job. Because Craig was unemployed, Craig and Sandra stipulated to reducing child and spousal support temporarily from May 1, 2006, to May 1, 2007. It was agreed spousal support would be temporarily reduced from $4,065 to $2,000 a month.
In July 2006, Craig began working for a new employer, Intelliflex, in sales. He earned $218,000 his first year. In 2007, his salary dropped to $211,990, and with the poor economy, Craig anticipated his salary would drop further in 2008.
In August 2007, Craig and Sandra stipulated that Craig would continue to pay reduced support until February 1, 2008, at which time support would revert back to the amount ordered in the September 2002 judgment ($4,065 in spousal support and $1,961 in child support). Before entering into the 2007 stipulation, Craig, who was not represented by counsel, provided Sandra’s attorney with his financial information, including his tax returns, W-2 form, and current pay stubs.
Before expiration of the second stipulated term of reduced support in February 2008, Craig contacted Sandra’s attorney and requested another extension of reduced support, which was denied. Shortly thereafter, in March 2008, Craig filed an order to show cause (OSC) to modify spousal support. Craig requested reduction or termination of the original 2002 support order requiring Craig to pay $4,065 in support on the ground Craig’s income was decreasing due to the state of the economy.
Craig claimed that at the time of the original support order in 2002, he was earning approximately $297,000, whereas in 2007, he earned approximately $212,000, and anticipated earning less in 2008. Craig currently was earning $14,583 a month, according to his income and expense declaration filed in March 2008. At the support modification hearing, Craig testified his average monthly income during the first six months of 2008 was $17,062, which was approximately $5,000 less per month than his income at the time of the support order in 2002. According to Craig, Sandra, on the other hand, had done nothing to improve her income since their separation in 1998.
Craig’s OSC request to modify support was heard in July and continued to September 2008. Meanwhile, in August 2008, Sandra’s attorney notified the court that Sandra had just obtained employment at a hotel as a general sales manager, earning $40,000 a year.
In October 2008, the court issued a tentative decision and notice to prepare order, containing detailed findings, along with proposed orders on spousal and child support. As to spousal support, the court ordered it reduced, effective January 1, 2009, to $2,000 per month through December 31, 2010, at which time spousal support would terminate, unless Sandra demonstrated by motion a compelling reason to extend the time period. No mention was made as to terminating jurisdiction over spousal support.
The October tentative decision further stated: “The Court concludes that in view of all the circumstances, Petitioner could become, and should become, sufficiently self-supporting by December 31, 2010 and that the orders made herein provide sufficient time for Petitioner to achieve the goal of becoming self-supporting. This Court finds that twelve years is more than a reasonable period of time for the Petitioner to become self-supporting. Any expectation by the Petitioner that she is entitled to lifelong support from the Respondent after a twelve year, seven month marriage is unrealistic and contrary to the trend of both statutory and case law....”
On March 10, 2009, the court entered an order reducing and terminating spousal support, as stated in the October 2008, tentative decision. The order also stated jurisdiction over spousal support was terminated on December 31, 2010, unless Sandra could demonstrate in a motion prior to that date a compelling reason to extend the time period. The order further incorporated the findings contained in the October tentative decision.
Sandra appeals the March 10, 2009, order.
3. Stipulated Support Agreement
Sandra contends the trial court erred in not enforcing the parties’ first and second stipulated support agreements, in which Sandra agreed to temporarily reduce spousal support to $2,000 a month, beginning on May 1, 2006, until February 1, 2008. Within a month after spousal support reverted back to the original court ordered amount of $4,065, Craig filed a motion to reduce or terminate spousal support. Sandra claims that the trial court’s order granting Craig’s request for modification of support contradicted the intent of the parties when they entered into the stipulated support agreements that Craig would pay Sandra the full amount of $4,065 in spousal support after February 1, 2008.
This court must construe the stipulated support agreements “under the statutory rules governing the interpretation[] of contracts generally. (Civ. Code, § 1635 et seq.; [citations].)” (In re Marriage of Iberti (1997) 55 Cal.App.4th 1434, 1439 (Iberti).) Under these rules, “A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful.” (Civ. Code, § 1636.) “The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity.” (Civ. Code, § 1638.)
Thus, when the language of the stipulated agreement “is clear, explicit, and unequivocal, and there is no ambiguity, the court will enforce the express language. [Citations.] Extrinsic evidence of the parties’ intentions is inadmissible to vary, alter, or add to the terms of an unambiguous agreement.” (Iberti, supra, 55 Cal.App.4th at p. 1440.) Under such circumstances, the agreement is subject to de novo review. (People v. Paredes (2008) 160 Cal.App.4th 496, 507.)
While we find it troubling that Craig sought to reduce spousal support within such a short time after spousal support was to revert back to the originally ordered amount, nothing within the terms of the two stipulations precluded Craig from seeking support modification. The language contained in the support stipulations is clear and this court cannot add terms that were not included in the agreement, such as a provision precluding Craig from obtaining court-ordered modification of support after February 1, 2008. There was no provision in the support stipulations stating that Craig forfeited his right to request the court to reduce support and no provision stating that the originally ordered support was nonmodifiable. This court thus cannot, in effect, add such terms precluding modification of support when none were included in the stipulated agreements.
Nevertheless, the impact of the stipulations to reduce support temporarily, in which Sandra received substantially less support for 21 months, should have been taken into consideration by the trial court when determining whether Sandra was reasonably diligent in becoming self-sufficient; the implication being that, if she was receiving half as much support as that originally ordered by the court ($2,000 instead of $4,065 a month), this may have hindered or delayed her ability to retrain and become self-supporting, thus requiring additional time and support to become self-supporting. The trial court’s findings do not reflect that this was taken into consideration, although the trial court did allow Sandra to receive support at the originally ordered amount of $4,065 for 11 months, after February 1, 2008, before support was reduced to $2,000.
4. Standard of Review Regarding Ruling Modifying Support
Sandra asserts that the trial court erred in ordering spousal support reduced and ultimately terminated, when Sandra never received proper Gavron notice warning her that the court could reduce or terminate support if she failed to make a reasonable effort to become self-supporting.
We review an order modifying spousal support for an abuse of discretion. “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.” (In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 47 (Schmir).
In exercising its discretion as to whether to modify spousal support, the trial court considers the same criteria set forth in Family Code section 4320 as it considered when making the initial order. (In re Marriage of Shaughnessy (2006) 139 Cal.App.4th 1225, 1235 (Shaughnessy.)
Unless otherwise specified, all subsequent statutory references are to the Family Code.
Family Code section 4320 provides in relevant part: “In ordering spousal support under this part, the court shall consider all of the following circumstances:
“(a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
“(1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.
“(2) The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
“(b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.
“(c) The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.
“(d) The needs of each party based on the standard of living established during the marriage.
“(e) The obligations and assets, including the separate property, of each party.
“(f) The duration of the marriage.
“(g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.
“(h) The age and health of the parties. [¶]... [¶]
“(k) The balance of the hardships to each party.
“(l) The goal that the supported party shall be self-supporting within a reasonable period of time.... [¶]... [¶]
“(n) Any other factors the court determines are just and equitable.”
Modification of spousal support requires a material change of circumstances since the last order. But this general rule was not designed to circumvent the goal that supported spouses become self-supporting within a reasonable period of time. (Shaughnessy, supra, 139 Cal.App.4that pp. 1235-1237.)
In the instant case, the trial court found that Sandra’s failure to diligently attempt to become self-supporting constituted changed circumstances. If supported by substantial evidence, this constitutes a change in circumstances justifying spousal support modification. (Shaughnessy, supra, 139 Cal.App.4th at p. 1238; “In re Marriage of Sheridan (1983) 140 Cal.App.3d 742, 749, [trial court acted within its discretion in refusing to continue spousal support after five years following a 13-year marriage, where supported spouse ‘had done little to prepare herself for or to seek gainful employment’]; In re Marriage of Rosan (1972) 24 Cal.App.3d 885, 896 [‘When evidence exists that the party to be supported has unreasonably delayed or refused to seek employment consistent with her or his ability... that factor may be taken into consideration by the trial court in fixing the amount of support in the first instance or in modification proceedings’].) ‘Whether there has been such unreasonable delay is a question addressed peculiarly to the trial court which heard the party’s testimony and observed the party’s demeanor at trial.’ (In re Marriage of Sheridan, supra, 140 Cal.App.3d at p. 749.) There is no requirement that the failure to exercise diligence in seeking gainful employment has been in bad faith. (Ibid.)” (Shaughnessy, at p. 1238.))
In In re Marriage of Schaffer (1999) 698 Cal.App.4th 801, 803, 812, the court affirmed the trial court’s order refusing to continue spousal support after 15 years of support, following a 24-year marriage. The Schaffer court observed that the husband had paid spousal support for 15 years while his former wife remained unwilling to consider more suitable employment. The Schaffer court explained that “a supported spouse cannot make unwise decisions which have the effect of preventing him or her from becoming self-supporting and expect the supporting spouse to pick up the tab.” (Ibid.)
The court explained in Shaughnessy, supra, 139 Cal.App.4th 1225, that “a material change of circumstances warranting a modification of spousal support may stem from unrealized expectations embodied in the previous order. [Citation.] Specifically, 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. [Citation.] Thus, if a court’s initial spousal support award contemplates that a supported spouse will take some action to decrease the need for spousal support following the issuance of the order and the supported spouse fails to take that action, the court may modify the award on the ground of changed circumstances.” (Id. at p. 1238.)
Here, there was substantial evidence that Sandra was not diligent in becoming self-supporting. At the time of the support modification hearing in July 2008, she had been unemployed for a year, and since the time of marital separation in 1998, she had not gone back to college to complete her degree, and had not diligently developed marketable skills to enhance her employability. It was not until the day of her testimony at the support modification hearing that she went for a job interview that led to employment. The job, however, did not provide her with sufficient income to support her at the marital standard of living.
While there was no vocational evaluation determining Sandra’s capability to develop marketable skills and increase her potential salary range, there was sufficient evidence that she was capable of obtaining a college degree and enhancing her marketable skills. Yet she did not make any effort to do this. She merely continued working at the sewing center until she was fired and then did not find another job until the time of the pending support modification hearing. The job she acquired was a relatively low-paying, unskilled job but was consistent with, or slightly exceeded, the findings and expectations stated in the original support order, that Sandra was capable of earning approximately $30,000 a year.
The facts in the instant case are similar in many ways to those in Shaughnessy, supra, 139 Cal.App.4th 1225, in which the couple was married 15 years and had no children. The husband paid the wife $2,000 a month in spousal support for nearly 10 years, supplementing the wife’s income at a low paying job as a florist, in which she earned approximately $24,000 to $30,000 a year. She also received $20,000 a year from her parents. (Id. at pp. 1230-1231.)
The trial court in Shaughnessy, supra, 139 Cal.App.4th 1225, found the wife had not been diligent in acquiring more lucrative employment and therefore ordered support reduced from $2,000 to $1,000, after seven and a half months, with support terminating after an additional six months, unless the wife demonstrated a compelling reason to extend the time period. (Id. at pp. 1233-1235.) The Shaughnessy court stated: “We conclude that Michelle’s failure to diligently pursue retraining in order to attempt to become self-supporting constituted a change in circumstances justifying a modification of the spousal support order.” (Id. at p. 1240.)
The Shaughnessy court explained that the trial court’s ruling modifying support was not an abuse of discretion: “In weighing the section 4320 factors in light of the changed circumstances, the trial court could have reasonably concluded that a modification of the prior spousal support award was warranted. By the time of the 2005 hearing on Greg’s OSC, Greg had been paying spousal support for nearly 10 years. Michelle was still relatively young at 46 years of age, was working and continued to be employable, and was receiving $20,000 per year from her parents. She had failed to diligently seek to obtain retraining or to otherwise become self-supporting, as required by the terms of the prior spousal support award.” (Shaughnessy, supra, 139 Cal.App.4th at p. 1245.)
The facts in the instant case are similar in that, by the time of the 2008 hearing on Craig’s OSC for support modification, Craig had been paying spousal support for 12 and a half years. Sandra was still relatively young at 45 years of age, was working and continued to be employable, and was earning $40,000, which was more than the wife was earning in Shaughnessy, supra, 139 Cal.App.4th 1225, although the wife in Shaughnessy received $20,000 per year from her parents. Sandra also was awarded as her separate property various investment properties, including the family residence.
But unlike in Shaughnessy, supra, 139 Cal.App.4th 1225, Sandra was responsible for caring for a child and received child support from Craig, amounting to between $1,828 and $2,181, in addition to $4,065 in spousal support, “continuing until the death of either party, wife’s remarriage or further order of the court.” By the time of the modification hearing in July 2008, the child was almost 17 years old. Also, unlike in Shaughnessy, Craig’s income decreased, rather than increased, although it appears he may have still been capable of providing the spousal support originally ordered.
Although there was evidence supporting the trial court finding that Sandra was not diligent in obtaining retraining or increasing her earning capacity, nothing in the September 2002 support order stated that Sandra was expected or required to obtain retraining or otherwise develop marketable job skills. There was also no warning, as required in Gavron, supra, 203 Cal.App.3d at pages 711-712, of adverse consequences, such as losing her support, if she failed to make a diligent effort to become self-supporting. The support order merely stated “[w]ife is advised that the purpose of spousal support is to enable her to become self-supporting within a reasonable time.”
In addition, the trial court’s July 2002 minute order stated: “[W]ife’s ability to earn $2,167 gross per month at the present time given full-time work which is available, and the amount of child support which is being paid which helps to meet the joint expenses of she and her daughter, the court finds that the amount of $4,355 per month in spousal support is necessary to provide a net income of $7,000 per month.... Wife is advised that the purpose of spousal support is to enable her to become self-supporting within a reasonable time. Given a presumed ability to earn at least $30,000 per year, the court will reduce this amount effective January 1, 2003 to $4,065 per month.... Support will continue until the death of either party, wife’s remarriage or further order of the court.”
There was no notice that spousal support would be terminated if Sandra did not make a reasonable attempt to increase her earning capacity and earn more than $40,000. There also was nothing expressly stating in the July and September 2002 orders that Sandra was expected to retrain, go back to school, or earn more than her presumed earning capacity of $30,000. Although she was told that the purpose of spousal support was to enable her to support herself within a reasonable time, she was led to believe she would receive support indefinitely. She was told that support would “continue until the death of either party, wife’s remarriage or further order of the court.”
The record indicates Sandra ultimately did what it appeared from the 2002 orders she was expected to do: get a job earning at least $30,000. Nevertheless, without any clear warning, the court in 2008 ordered her support reduced after two months and then terminated within an additional year, with the burden shifting to her to prove she was entitled to an extension of time for support.
This order was improper under Gavron, supra, 203 Cal.App.3d 705, in which the court held that, before terminating spousal support, the trial court must give advance notice to the obligee, not only that he or she is expected to become self-supporting, but also that failure to do so may result in reduction or termination of spousal support. (Id. at pp. 711-712.)
In Shaughnessy, supra, 139 Cal.App.4th 1225, unlike in the instant case, the wife was given Gavron notice in the original support order. In addition, the Shaughnessy trial court informed the wife at the initial hearing that she was not earning enough to support herself and needed to retrain and obtain computer skills. The Shaughnessy court clearly told the wife she was expected to become self-supporting. (Id. at p. 1249.) The notice box in the original judgment was also checked, and stated: “‘NOTICE: It is the goal of this state that each party shall make reasonable good faith efforts to become self-supporting as provided for in Family Code section 4320. The failure to make reasonable good faith efforts may be one of the factors considered by the court as a basis for modifying or terminating spousal support.’” (Italics added.) (Id. at p. 1248.)
The support order in Shaughnessy, supra, 139 Cal.App.4th 1225, further stated: “2. The court finds that [Michelle’s] earning capacity is not sufficient to meet her needs for the following reasons: [¶] a. [Michelle] does not possess marketable employment skills for the current job market. [Michelle] has a journalism degree, however, she has been a florist during most of the marriage. [Michelle] needs to be retrained and obtain computer skills. [¶]... [¶]... [Michelle] began to realize one year ago she needs marketable skills and needs to look at retraining options.” (Id. at pp. 1248-1249.)
The Shaughnessy court concluded that the wife was given sufficient Gavron notice and affirmed the trial court’s step-down, Richmond order, reducing and ultimately terminating support. (Shaughnessy, supra, 139 Cal.App.4th at p. 1249.) Even though the marriage in Shaughnessy was long term (15 years) and the wifewas unable to earn enough to maintain the marital upper middle class lifestyle, the court concluded she was not entitled to permanent support and had received support long enough (10 years) to enable her to retrain in a more lucrative profession.
In re Marriage of Richmond (1980) 105 Cal.App.3d 352, 356.
In affirming the order terminating support, the Shaughnessy court explained: “Although the marriage in this case was a lengthy one, that fact alone does not justify an unlimited spousal support award. In the absence of circumstances demonstrating that a spouse is incapable of becoming self-supporting, a person in Michelle’s position cannot reasonably expect to receive spousal support indefinitely. Rather, the spouse should expect to be required to become self-supporting within a reasonable period of time. As noted above, Michelle was a college-educated 35 year old at the time she and Greg separated, and had no children from their marriage. She has had nearly 11 years since their separation to pursue more lucrative employment, but has failed to do so. Under these circumstances, receiving support for more than 10 years after a 15-year marriage, as Michelle has, is more than reasonable.” (Shaughnessy, supra, 139 Cal.App.4th at p. 1249.)
The circumstances in the instant case are similar in many ways to those in Shaughnessy, supra, 139 Cal.App.4th 1225, with the notable exception that Sandra was not given proper Gavron notice. She was essentially told she was expected to earn at least $30,000. She was not told she was expected to retrain or go back to school to achieve more lucrative employment. More importantly, Sandra was not told that, by failing to retrain and complete her college degree, she risked losing spousal support.
She also was not warned that at some point spousal support could be terminated even if she was not earning enough to maintain the marital standard of living. To the contrary, the original spousal support order indicated Sandra would receive support indefinitely, until her remarriage, Craig’s death or further order of the court. Perhaps, had she known that at some point spousal support likely would be terminated, she would have made more of an effort to increase her earning capacity by developing a lucrative career.
At a minimum, Sandra should have been forewarned that support likely would terminate, and she would thereafter have to support herself. She therefore should make every effort diligently to enhance her earning ability through retraining and education, and if she fails to do so, support could be reduced or terminated even sooner. In the absence of such a warning, Sandra was given the false sense of security that she would indefinitely receive spousal support as long as she worked at a relatively low-paying job in the $30,000 range. She therefore essentially had no incentive to achieve any more than this.
As noted in Schmir, supra, 134 Cal.App.4th 43, “As recognized by our Supreme Court the public policy of this state has progressed from one which ‘entitled some women to lifelong alimony as a condition of the marital contract of support to one that entitles either spouse to post dissolution support for only so long as is necessary to become self-supporting.’[] Along with this change in attitude toward spousal support came the judicial recognition that before spousal support can be terminated or reduced the supported spouse-often an ex-wife with little or no job skills or a long history of unemployment outside the home-must be given fair notice of the expectation of self-sufficiency and a reasonable opportunity to achieve such goal.” (Id. at p. 54; italics added.) Under Gavron, supra, 203 Cal.App.3d at pages 711-712, Sandra must also be forewarned of the potential consequence of not diligently attempting to become self-sufficient. She must be told that at some point her support may be reduced or terminated.
In Gavron, supra, 203 Cal.App.3d 705, the trial court terminated spousal support to a 57-year-old woman who had been married for 25 years to a dentist and had very little employment experience. (Id. at p. 708.) Six years after entry of the judgment of dissolution, and after 11 years of spousal support, the former husband moved for termination of support. Due to the wife’s lack of diligence in becoming employed, the trial court ordered four additional months of support and then termination of all support, with the trial court retaining jurisdiction. (Id. at pp. 708-709.)
On appeal, the Gavron court reversed on the ground that the supported spouse must be made aware of the obligation to become self-supporting and the consequences of failing to do so before the supporting spouse’s support is modified due to failing to make good-faith efforts to become self-sufficient: “[I]nherent in the concept that the supported spouse’s failure to at least make good-faith efforts to become self-sufficient can constitute a change in circumstances which would warrant a modification in spousal support is the premise that the supported spouse be made aware of the obligation to become self-supporting.” (Gavron, supra, 203 Cal.App.3dat p. 712.) The Gavron court thus concluded: “It is particularly appropriate here that there should have been some reasonable advance warning that after an appropriate period of time the supported spouse was expected to become self-sufficient or face onerous legal and financial consequences.” (Ibid.) Such notice is commonly referred to as “Gavron notice.”
As explained in Schmir, supra, 134 Cal.App.4th 43, the court in Gavron held that, “in the absence of a ‘reasonable advance warning that after an appropriate period of time the supported spouse was expected to become self-sufficient or face onerous legal and financial consequences[, ]’ failure of the supported spouse to become self-supporting cannot be a ‘changed circumstance’ supporting a modification. [Fn. omitted.] Thus, what has become known as a ‘Gavron warning’ is a fair warning to the supported spouse he or she is expected to become self-supporting” (id. at p. 55), and such “warning” must include notice of the potential consequences of failing to become self-supporting.
In 1996, the Legislature codified the Gavron warning in section 4330, subdivision (b). That statute currently states: “When making an order for spousal support, the court may advise the recipient of support that he or she should make reasonable efforts to assist in providing for his or her support needs, taking into account the particular circumstances considered by the court pursuant to Section 4320, unless, in the case of a marriage of long duration as provided for in Section 4336, the court decides this warning is inadvisable.” This provision does not mandate that Gavron notice be given in a long-term marriage, such as when the court intends to continue support indefinitely, but such notice would be required before reducing or terminating support. (Schmir, supra, 134 Cal.App.4that p. 57.)
The question then becomes in the instant case, was proper Gavron notice given? We think not. The Gavron court indicated such notice could be accomplished in a number of ways. Notice could be provided by “an explicit statement by the court at the time of its original support order regarding employment expectations of the supported spouse [citation], a motion and ensuing order that the supported party ‘submit to an examination by a vocational training consultant’ [citation], a stipulated agreement which addresses the wife’s ability to obtain future employment [citation], or a justified assumption of continued future employment based on the supported spouse’s employment during the parties’ separation and at the time of the original support order which contained a reasonable termination date for support [citation].” (Gavron, supra, 203 Cal.App.3dat p. 712.)
Here, the court told Sandra the purpose of spousal support was to enable her to become self-supporting but did not warn her of the possibility that she would at some point no longer receive support, even if she was working and earning what the court anticipated she was capable of earning. The trial court’s July 2002 minute order stated: “Wife is advised that the purpose of spousal support is to enable her to become self-supporting within a reasonable time.”
The subsequent September 2002 order includes a preprinted form judgment (Judicial Council Forms, form 1287), which states spousal support is ordered as set forth in the attached judgment on reserved issues. There is no “x” in the box preceding the following spousal support notice: “It is the goal of this state that each party shall make reasonable good faith efforts to become self-supporting as provided for in Family Code section 4320. The failure to make reasonable good faith efforts may be one of the factors considered by the court as a basis for modifying or terminating spousal support.” Rather than designating this notice, the attached judgment on reserved issues stated: “Wife is advised that the purpose of spousal support is to enable her to become self-supporting within a reasonable time.” During the trial in July 2008, Sandra testified that she took this admonition seriously. Sandra further acknowledged that she knew that, if she did not “do that there would be consequences, perhaps, with regard to the continuation of [her] spousal support orders.”
We conclude that under such circumstances proper Gavron notice was not provided because Sandra was not warned she might lose her support if she was not diligent in becoming self-supporting. It is apparent from the record that she thus assumed that as long as she was employed and earning around $30,000, she would continue receiving spousal support. Had she known that she would not indefinitely receive support under such circumstances, perhaps she would have made more of an effort to enhance her earning capability through further education and training in a profession that paid more.
As the court noted at the trial, “[I]t seems pretty clear to me from all of the evidence that Miss Kavanaugh did not understand that when she was advised by the Court or if she understood it she took no steps, but the evidence indicates there was not an understanding that when she was advised by Commissioner Bryant that the purpose of all support was to assist her in becoming self-supporting that that meant fully self-supporting.” In essence, she was not put on notice that at some point support likely would end and she would have to support herself.
Although we reverse the support order due to lack of proper Gavron notice, Sandra should not assume that she will receive spousal support indefinitely, since there is a good chance spousal support will terminate at some point in the future and then Sandra will not be able to continue living at the marital standard of living unless she develops a lucrative career. Many years have passed since her marriage ended and, at some point, in all likelihood, her former husband will no longer be held responsible for supplementing Sandra’s income.
As to the issues relating to the sufficiency of evidence and termination of jurisdiction over spousal support, these issues are moot because the spousal support order is reversed on the ground Sandra did not receive proper Gavron notice.
5. Disposition
The order modifying spousal support, entered on March 10, 2009, is reversed. The trial court is directed to provide proper Gavron notice of a reasonable period of time before ordering reduction or termination of spousal support. Such notice should include warning Sandra of the possibility, if not likelihood, that spousal support will be reduced, if not terminated, in the future, particularly if she fails to make a diligent attempt to become self-supporting. The trial court is further directed to allow Sandra a reasonable period of time after providing Gavron notice to enhance her earning capacity before the court reduces or terminates spousal support.
Each party shall bear his and her respective costs on appeal.
We concur: Ramirez P. J., McKinster J.