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In re Marriage of Maciel

California Court of Appeals, Fifth District
Feb 3, 2011
No. F059666 (Cal. Ct. App. Feb. 3, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kings County No. 53769. David L. Allen, Judge. (Retired Judge of the Tulare S.Ct. assigned by the Chief Justice pursuant to article VI, § 6 of the Cal. Const.)

Maroot & Hardcastle and V. Wayne Hardcastle for Plaintiff and Appellant.

Joan A. Watters for Defendant and Respondent.


OPINION

Kane, J.

Ronald John Maciel (Husband) appeals from the trial court’s order granting spousal support to Shirley M. Maciel (Wife) in the amount of $800 per month. Spousal support had previously been reduced to $0.00 per month during a time when Husband was no longer employed as a judge but was not yet entitled to receive income from his retirement pension. Once Husband started receiving monthly income from his retirement pension, Wife moved to modify spousal support and the trial court ordered Husband to pay the sum of $800 per month. In his appeal, Husband contends the trial court abused its discretion because, allegedly, (i) it was improper for the trial court to consider his retirement income, and (ii) there was insufficient evidence to support certain of the trial court’s findings. We disagree and accordingly affirm the order of the trial court.

FACTS AND PROCEDURAL HISTORY

The parties were divorced in 1992, after a marriage that lasted over 23 years. The terms of the divorce were set forth in a marital settlement agreement that was merged into the judgment of dissolution entered on April 30, 1992 (the dissolution judgment). At that time, Husband’s income was $7,566 per month and Wife’s was $125 per month. The parties had three adopted children, ages 7, 7 and 9. Primary physical custody of the children was awarded to Wife, subject to Husband’s right to reasonable visitation of one day each week, one weekend each month, and two to four weeks during the year. Husband was ordered to pay child support to Wife in the sum of $1,095 every other week, which sum was to “automatically increase to coincide with increases in Husband’s income.” In addition, Husband was ordered to pay spousal support to Wife in the sum of $380 every other week “until the death of either party, remarriage of the recipient, or further order of the Court[, ]” and “this sum shall increase in the same proportion as Husband’s income as in child support above.” As further stipulated and determined in the 1992 dissolution judgment, “[t]he parties during the marriage enjoyed an upper middle class standard of living which is not met by this order as both parties have scaled their lifestyles due to the dissolution.”

The dissolution judgment also divided the community property. As part of her award, Wife received one-half of the community property interest in Husband’s CalPERS and Judge’s Retirement System (or JRS) retirement benefits (attributable to the marriage through the date of the parties’ separation in 1991) as a “present[, ] equal, in kind division of the community interest in [Husband’s] rights under said plan.” Wife was entitled to receive her one-half interest in the plan as a lump sum payment and she chose to do so. Included in the language of the dissolution judgment was the parties’ waiver of “all right, title, and interest in all such [subsequent] income, earnings, or other property so received or acquired by the other.” It is not disputed that the bulk of Husband’s retirement benefits, including his benefits under the JRS-1 program, were earned by him subsequent to the parties’ separation.

From time to time after the 1992 dissolution judgment, the trial court was requested by one or both of the parties to modify the amounts due as child and/or spousal support. The only record on appeal of those earlier proceedings is the summary set forth in the trial court’s support order from which Husband has appealed. The parties do not dispute the accuracy of that summary, from which we now recite.

“The second hearing involving spousal support was commenced on July 27, 1995. [Husband] filed an Order To Show Cause requesting that the monthly child support for the three minor children, which had increased from $1,095.00 every other week to $1,184.00 every other week, be modified in accordance with support guidelines. [Husband] also requested that spousal support which had increased to $411.00 every other week should be terminated or reduced to $0.00. [Husband] listed his current gross monthly income as $8,172.00. [Wife] listed her average gross income for the previous twelve months as $3,980.25. [Wife] consented to a reduction of her spousal support to $0.00 and to guideline support on the issue of modifying child support. [Wife] did not agree to a termination of spousal support and asked for $1,000.00 attorney’s fees. At the Order To Show Cause hearing on August 28, 1995, the parties stipulated that child support would be reduced to $1,950.00 per month, and that spousal support was reduced to $0.00 with the court retaining jurisdiction until the death of the payee or unless otherwise provided.…

“The third hearing involving spousal support occurred on June 15, 1998, when [Wife] filed an Order To Show Cause requesting modification of child support and spousal support to amounts consistent with her reduced income and the increased income of [Husband]. [Husband] indicated an average monthly income for the previous twelve months was $8,519.00 per month. [Wife] claimed that she was working no more than 20 hours per week because of medical reasons, phase out of her job …, and her assumption of the responsibility for home schooling two of their children. The court’s ruling issued on August 25, 1998 accepted [Wife’s] evidence that she worked no more than 20 hours a week, and that [Husband] had agreed with the home schooling arrangement. The court also found that medical reasons were a factor contributing to [Wife’s] drop in income. The court found that there had been a material change in circumstances since the 1995 order was issued, and that [Wife] had the need for some spousal support from [Husband, ] who had the ability to pay spousal support. Spousal support was set at $350.00 per month commencing August 1998.…

“The fourth hearing raising the issue of spousal support was initiated on June 30, 2006, when [Husband] filed an Order To Show Cause requesting that spousal support be terminated. [Husband] alleged that the children of the parties were all adults, and that [Wife], a registered nurse, was capable of working full time as a nurse making approximately $75,000.00 per year. [Husband] stated that he would be retiring from the bench on January 2, 2007, but was not eligible to receive his retirement income until January 2009.… [Husband] argued that he should not be compelled to work beyond normal retirement age so that [Wife] would not have to take the steps necessary to be self-supporting. The court ruled that based upon [Husband’s] significant drop in income following his retirement on January 1, 2007, and [Wife’s] present gross income of $4,300.00 to $4,500.00 per month; a reduction of her spousal support to $0.00 was proper.” The trial court reserved jurisdiction over spousal support, noting that at the time Husband begins to receive his retirement pay, “Wife’s age may be a factor for further review.”

This brings us to the latest hearing regarding modification of spousal support, which is the subject of the present appeal. In 2009, after Husband began receiving his monthly judge’s retirement benefits of over $10,000 per month, Wife filed an order to show cause requesting modification of spousal support. Her income and expense statement disclosed that her average monthly income was $4,330, plus monthly Social Security benefits of $1,525, amounting to a current monthly gross income of $5,855. In her moving papers, Wife stated that she “would like to retire from [her] 20 hour a week nursing job” as soon as possible. She did not believe she could afford to do so, at least not at the marital standard of living, without spousal support. Her reply declaration asserted: “I am now 68.… [¶] Given my age, health, and retirement income ($1,525.00 plus a small amount from Adventist retirement)[, ] I would be unable to maintain a basic living standard, not a standard as in our marital status. The court previously found that the marital standard of living was ‘upper middle class.’ [¶] For many years I worked an average 26 hours per week. In the past 3 years I have worked an average of 20 hours per week as this is the best I could do. [Husband] argues that I should be working 40 hours a week, apparently forever. [The trial judge] previously found, and [Husband] agreed, that medical reasons supported a 20 hour week regime.”

Wife further argued: “When [Husband] retired at the age of 62, he then asked the court to terminate support. The court denied his request. Instead, the court reduced the amount to zero and created a clear expectation that we would return to court when [Husband] began to receive his substantial retirement income, my age to be a factor.… I am now 68 and need to retire.”

Beginning in 2009, Husband’s income from the judge’s retirement system was $10,056 per month, plus Social Security benefits of $559 per month, for a total monthly income of $10,615. In opposition to Wife’s request for spousal support, Husband argued that Wife could continue working as a registered nurse, and if she worked full-time she could earn a substantial income. Even working part-time, she was able to pay her living expenses. Thus, he argued no further spousal support was warranted. In addition, he argued that in the 1992 property division, Wife “received her share, and withdrew it from the system.” He therefore argued that it was “unfair” to utilize “what retirement benefits that I have remaining to provide for her support.”

After several continuances, the hearing was conducted on October 23, 2009. The trial court heard extensive oral argument from the attorneys and took the matter under submission. On November 12, 2009, the trial court issued its order granting Wife’s request for spousal support in the sum of $800 per month. The order was based on the trial court’s consideration of the parties’ present income, Wife’s needs, the marital standard of living, Wife’s age and health, and the other factors set forth in Family Code section 4320. The trial court found that Wife had adequately shown “a material change of circumstances” since the time of the prior spousal support order. However, the trial court’s ruling was not premised on Wife’s desire to retire in the near future, since that was a mere possibility, not a definite reality. The trial court noted that if Wife does retire, and she “establishes bona fide reasons supporting [her] decision to retire, then an increase of spousal support from $800.00 per month to a higher amount is a possibility.” Husband appealed from the trial court’s support order.

Unless otherwise indicated, all further statutory references are to the Family Code.

DISCUSSION

I. Standard of Review

“[W]hether a spousal support order should be modified is a matter within the sound discretion of the trial court, predicated upon a showing of a material change of circumstances since the last spousal support order.” (In re Marriage of Stephenson (1995) 39 Cal.App.4th 71, 76-77.) Generally speaking, a “[c]hange of circumstances means a reduction or increase in the supporting spouse’s ability to pay and/or an increase or decrease in the supported spouse’s needs.” (In re Marriage of McCann (1996) 41 Cal.App.4th 978, 982, citing, e.g., In re Marriage of Hoffmeister (1984) 161 Cal.App.3d 1163, 1173 (Hoffmeister I).) “The moving party bears the burden of establishing a material change of circumstances since the last order was made in order to obtain modification of the spousal support order. [Citations.] In determining whether a change of circumstances has occurred, the trial court is required to reconsider the same standards and criteria set forth in … Family Code section 4320 it considered in making the initial long-term order at the time of judgment and any subsequent modification order.” (In re Marriage of Stephenson, supra, at pp. 77-78, fn. omitted.)

“Whether a modification of a spousal support order is warranted depends upon the facts and circumstances of each case, and its propriety rests in the sound discretion of the trial court[, ] the exercise of which this court will not disturb unless as a matter of law an abuse of discretion is shown.” (In re Marriage of Hoffmeister (1987) 191 Cal.App.3d 351, 357-358 (Hoffmeister II).) Appellate review of such an order is governed by the deferential abuse of discretion standard. (In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 197.) “‘An abuse of discretion occurs when, after calm and careful reflection upon the entire matter, it can fairly be said that no judge would reasonably make the same order under the same circumstances. [Citation.]’ [Citation.]” (In re Marriage of Reynolds (1998) 63 Cal.App.4th 1373, 1377.) “‘As long as the court exercised its discretion along legal lines, its decision will be affirmed on appeal if there is substantial evidence to support it.’ [Citations.]” (In re Marriage of Blazer (2009) 176 Cal.App.4th 1438, 1443.)

However, to the extent we must decide whether the trial court applied the correct legal principles, such question is one of law that we review de novo. (See, e.g., Elsenheimer v. Elsenheimer (2004) 124 Cal.App.4th 1532, 1536; Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 800-801.) Such is the preliminary question before us of whether the trial court could consider Husband’s retirement income.

II. Trial Court Properly Considered Husband’s Retirement Income

Husband contends that it was legal error for the trial court to consider his 2009 retirement income in deciding whether to grant spousal support. Husband points out that the trial court divided the parties’ then community property interest in Husband’s retirement pension in 1992, and Wife received her share as a lump sum. Based on that property division, and on the parties’ express waiver of any “right, title, and interest” in future income received after the time of the 1992 dissolution judgment, Husband asserts it was improper for the trial court to consider his retirement income in deciding whether to award spousal support. We disagree.

We believe this question was correctly resolved in In re Marriage of White (1987) 192 Cal.App.3d 1022 (White). In that case, in the parties’ division of community property, the husband received the entirety of the pension rights earned in his employment with the City of Los Angeles, and the wife received the house. The husband in White argued that once this division of assets was made and the pension became his separate property, it would be improper “‘double dipping’” for the trial court to subsequently consider the monthly pension payments for purposes of awarding spousal support. (Id. at p. 1027.) The Court of Appeal rejected that argument, noting that the wife was not claiming entitlement as co-owner of property, but was merely claiming that the monthly pension benefits “constitute income to [the husband] which must be considered when assessing his ability to pay spousal support.” (Id. at p. 1026.) Further, the Court of Appeal explained that a trial court’s division of community property is distinct from ordering support: “Because the division of community property is premised on absolute ownership of community assets by both parties, each must receive a respective full share. An award of spousal support, in contrast, is broadly discretionary, ” and is based on considerations of equity in which the trial court looks at such factors as the needs and incomes of the parties. (Id. at p. 1026.)

Accordingly, the Court of Appeal in White held that the husband’s income received from his retirement pension had to be considered by the trial court for purposes of the wife’s request for spousal support. (White, supra, 192 Cal.App.3d at pp. 1026-1029.) As further support for its holding, the Court of Appeal referred to a number of other cases affirming the principle that, in awarding spousal support, a trial court may draw upon separate property sources of income that had been community property during the marriage. (Id. at pp. 1027-1028, citing In re Marriage of Epstein (1979) 24 Cal.3d 76, 91, fn. 14; Verner v. Verner (1978) 77 Cal.App.3d 718, 724-725; In re Marriage of Olivarez (1986) 188 Cal.App.3d 336, 343.)

We agree with White’s analysis and will follow it here. (See also In re Marriage of Olson (1993) 14 Cal.App.4th 1, 10 [“‘The existence and not the source of sums of money or services available is the relevant factor’”].) Consequently, we conclude the trial court properly considered Husband’s retirement income as income, even though the title or ownership rights to the retirement pension were previously divided and all further property rights thereto were waived and relinquished in that property division.

For the same reasons, we uphold the trial court’s implicit finding that the language of the dissolution judgment did not constitute a waiver of Wife’s right to seek future spousal support where the source of Husband’s income was his separate property retirement benefits. The wording contained in the dissolution judgment whereby the parties waived any “right, title, and interest” in future income or earnings clearly related to the parties’ property rights only, not to either party’s right to seek future spousal support. Our conclusion is further supported by the fact that the dissolution judgment expressly provided for Wife’s spousal support to continue “until the death of either party, remarriage of the recipient, or further order of the Court.” Since future spousal support was contemplated, it follows that Husband’s future income from whatever sources (including retirement income) would potentially have to be considered. We conclude there was no waiver.

III. Modification of Spousal Support Was Not An Abuse of Discretion

As noted above, a trial court may not grant a modification of spousal support unless a showing is made by the moving party of a material change of circumstances since the last order. (In re Marriage of McCann, supra, 41 Cal.App.4th at pp. 982-983.) A change of circumstances ordinarily means “‘a reduction or increase in the supporting spouse’s ability to pay and/or an increase or decrease in the supported spouse’s needs. [Citations.] It includes all factors affecting need and the ability to pay.’ [Citation.]” (In re Marriage of Dietz (2009) 176 Cal.App.4th 387, 396.) “In determining whether a change of circumstances has occurred, the trial court is required to reconsider the same standards and criteria set forth in … Family Code section 4320 it considered in making the initial long-term order at the time of judgment and any subsequent modification order.” (In re Marriage of Stephenson, supra, 39 Cal.App.4th at pp. 77-78, fn. omitted.) As long as the trial court applies the criteria in section 4320, “‘the ultimate decision as to amount and duration of spousal support rests within its broad discretion and will not be reversed on appeal absent an abuse of that discretion. [Citation.]’” (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 283.)

Section 4320 provides:

A. Substantial Evidence Supported Findings

Here, the trial court’s order granting spousal support separately listed and discussed all of the statutory criteria set forth in section 4320. In particular, the trial court carefully weighed factors such as Husband’s substantial increase in monthly income (i.e., the commencement of his judge’s retirement pay), Wife’s income, Wife’s age (68), health and employment capability, the duration of the marriage and the marital standard of living. Based on such considerations, the trial court concluded there was a material change in circumstances warranting a modification of spousal support.

Husband contends the trial court abused its discretion in determining that there was a material change of circumstances because, allegedly, several of the trial court’s findings in support of that determination were not supported by substantial evidence. (See, e.g., In re Marriage of McCann, supra, 41 Cal.App.4th at p. 983 [“an abuse occurs when a court modifies a support order without substantial evidence of a material change of circumstances”]; In re Marriage of Ackerman, supra, 146 Cal.App.4th at p. 197 [an abuse of discretion occurs if court’s “findings are wholly unsupported”].) We briefly address each of Husband’s contentions below.

Husband argues there was no evidence to support the trial court’s finding that Wife did not have the present earning capacity to maintain the standard of living established during the marriage. We disagree. Our discussion of this issue entails two aspects of the trial court’s findings: (1) Wife’s present standard of living compared to the marital standard of living, and (2) Wife’s earning capacity. In regard to Wife’s standard of living, the trial court found that Wife was not experiencing the standard of living the parties had enjoyed during the marriage. That finding was adequately supported by substantial evidence. In the dissolution judgment, which was based on the parties’ agreement, it was established that they had a combined monthly income in 1992 of $7,691 ($7,566 of which was Husband’s income), and that “[t]he parties during the marriage enjoyed an upper middle class standard of living[, ] which is not met by this order as both parties have scaled their lifestyle due to the dissolution.” Nearly 20 years later, at the time of Wife’s motion for spousal support that is the subject of this appeal, Wife’s average gross monthly income was shown to be $5,855, based on a salary of $4,330 and Social Security benefits of $1,525, with monthly expenses listed in her income and expense statement of $5,278. In light of this financial information before the trial court, we conclude there was substantial evidence to support the trial court’s conclusion regarding Wife’s standard of living; namely, that it was not at the same “upper middle class” level that was enjoyed at the time of the parties’ marriage. (See In re Marriage of Mosley (2008) 165 Cal.App.4th 1375, 1392 [finding of income indicated standard of living]; In re Marriage of Smith (1990) 225 Cal.App.3d 469, 475 [standard of living not a precise mathematical calculation, but a general reference point].)

Copies of Wife’s paychecks, attached to her income and expense declaration, showed that her gross salary was reduced by deductions such as federal and state taxes, FICA (Social Security) and medical and dental insurance. For example, her two paychecks for the pay periods of December 14, 2008, to December 27, 2008, and December 28, 2008, to January 10, 2009 (she was paid every two weeks), showed a net take-home pay of $1,204.72 and $1,135.41, respectively. That was only $2,340.13 over a four-week period.

Husband’s main argument appears to be that there was no evidence to support the trial court’s rejection of Husband’s claim that Wife, as a registered nurse, was capable of earning sufficient income to meet or exceed the marital standard of living. The trial court was required to consider “[t]he extent to which the earning capacity of [Wife] is sufficient to maintain the standard of living established during the marriage, ” taking into account such factors as “[t]he marketable skills of [Wife]” and “the job market for those skills.” (§ 4320, subd. (a)(1).) The trial court did so, but it found the evidence did not support a conclusion that Wife’s skills were highly or even moderately marketable under all the circumstances. Instead, in determining that Wife was unable to earn sufficient income to maintain the standard of living established during the marriage, the trial court found it highly significant that Wife “is 68 years of age and [she] finds it more difficult … to handle the work requirements of a registered nurse in the working environment, even when she is limited to a 20-hour workweek.” These facts were adequately established in Wife’s supporting declaration. Elsewhere in its order, the trial court accepted Wife’s assertion “that she suffers from a neurological condition that hampers her ability to work as a registered nurse even at a 20-hour workweek.” The trial court noted that Wife had, at a previous order to show cause hearing, produced evidence supporting her claim that health-related conditions hampered her ability to work as a registered nurse. In that regard, Wife requested the trial court take judicial notice of such records in the court file, which it apparently did. It is clear that the trial court’s findings regarding Wife’s earning capabilities were based on relevant circumstances in this case, including Wife’s age, health, the increasing difficulty of handling her work demands due to her age and health, and her limitation to a 20-hour workweek, all as adequately supported by substantial evidence.

Those court records, however, are not part of the record on appeal. Since an adequate record was not provided as to this aspect of the trial court’s order, we have no basis to conclude an abuse of discretion occurred and will presume in favor of its correctness. (See Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 448.)

Next, Husband challenges the trial court’s finding that without an award of spousal support, Wife would likely “suffer some economic hardship, ” based on her present income and other circumstances. Husband contends the finding lacked any evidentiary support and was beyond “the ‘bounds of reason.’” (See In re Marriage of Smith, supra, 225 Cal.App.3d at p. 480.) We disagree. Considering all the circumstances shown by the record and weighed by the trial court under section 4320, we are unable to conclude that the trial court’s finding was entirely without factual support or irrational. The “hardship” indicated by the trial court was obviously a relative one, viewed in light of Wife’s needs in comparison to the situation of Husband. As shown by her income and expense statement, Wife’s gross monthly income was close to the amount of her reasonably modest monthly expenses, albeit it appeared she still had some discretionary income. Moreover, as we discussed above, her situation remained below the standard of living of the parties’ marriage, which is a significant factor in determining need of spousal support. (§§ 4330, 4320, subd. (d).) In addition, as the trial court pointed out in its order, Wife’s age and health have made it increasingly difficult for her to work even a 20-hour per week nursing regimen, upon which her present income level depends. In light of all the circumstances weighed by the court, we cannot conclude the trial court’s finding was unsupported or arbitrary.

See footnote 3, ante, regarding net salary after deductions.

The trial court observed that both parties had claimed some questionable expenses. It rejected the claim by both parties that their expenses exceeded adjusted gross income, and it believed that both parties likely had “some discretionary income available.”

In any event, the more important point is that the trial court looked at all of the factors under section 4320, and it made a decision to award spousal support that is ultimately supported by substantial evidence in the record.

B. Change of Circumstances and Other Factors Adequately Supported Order Modifying Support

Husband contends the trial court erroneously found that a material change of circumstances occurred since the prior support order. Two distinct arguments may be discerned: (1) The trial court erred because its finding of a material change of circumstances was based solely on Husband’s increased ability to pay, and (2) the trial court failed to give enough weight to some factors but gave too much to others. Both arguments fail.

The first argument, in its longer form, is that the trial court abused its discretion by relying solely on Husband’s increased ability to pay without making a finding that Wife had an existing need of further support. As authority for this argument, Husband cites Hoffmeister I, supra, 161 Cal.App.3d 1163 and Hoffmeiser II, supra, 191 Cal.App.3d 351. We briefly summarize the holdings of those cases.

In Hoffmeister I, the Court of Appeal addressed the question of whether an increased ability to pay on the part of the supporting spouse was sufficient, by itself, to warrant an increase in spousal support for the supported spouse. (Hoffmeister I, supra, 161 Cal.App.3d at pp. 1173-1174.) It held that where the only changed circumstance was the supporting spouse’s increased ability to pay, the supported spouse must also demonstrate “that his or her need is not being satisfied by the existing spousal support award.” (Id. at p. 1174.) “This can be accomplished … by evidence that, although the supported spouse’s need has not increased, such need was never satisfied, or at least is not now being satisfied, by the last previous award at the time it was made and that need has not decreased.” (Ibid.)

In Hoffmeister II, supra, 191 Cal.App.3d at page 364, the Court of Appeal further elaborated as follows: “Hoffmeister I instructs that although changed circumstances can be based on an increased ability to pay, the supported spouse must also show that his or her needs at the time of separation were never met. The supported spouse may demonstrate this by showing that the payor did not have the financial resources to meet those needs at the time of separation. Further, a showing that the supported spouse’s postseparation needs have in fact increased due to a change in that spouse’s circumstances, such as a change in the health of the supported spouse which precludes employment, coupled with an increased ability to pay, will support a modification.” Hoffmeister II also indicated that the unmet financial need of the supported spouse may be based on a consideration of the marital standard of living, and whether such standard had been satisfied under the existing order. (Id. at pp. 363-364.) On this latter point, another appellate court aptly summarized: “Under normal circumstances, if spousal support is still continuing, and if there is subsequently an increase in the supporting spouse’s income sufficient to return both parties to the marital standard of living, support will be increased to an amount that will permit the supported spouse to live at that standard.” (In re Marriage of Smith, supra, 225 Cal.App.3d at p. 482.)

We now address Husband’s contention that the trial court granted a modification of spousal support on a bare showing that he has an increased ability to pay, without any assessment of Wife’s need. We reject that argument because it is a mischaracterization of the findings of the trial court. The trial court did not base its decision to order spousal support on Husband’s increased income alone, but on all of the factors set forth in section 4320, including Wife’s age, health, current income, and earning capabilities under the circumstances. More specifically, the trial court discussed “[t]he needs of each party based on the standard of living established during the marriage, ” and, based on the facts as stipulated in the dissolution judgment and on the parties’ present income and expenses, concluded that the marital standard of living had never been met. As we have discussed above, the trial court’s determination regarding marital standard of living was supported by substantial evidence. The existence of need for additional spousal support may be based on a failure of a prior support arrangement to meet the marital standard of living. (In re Marriage of Smith, supra, 225 Cal.App.3d at pp. 482-483.) For these reasons, we conclude the showing of need and the trial court’s finding on that issue were sufficiently made in this case, and therefore Husband’s argument fails.

Finally, Husband contends that even though the parties had a marriage of long duration, the trial court should have given greater consideration to other factors, such as Wife’s employment skills as a registered nurse and the goal that the supported party should attempt to be self-supporting. (See § 4320, subd. (l).) The trial court addressed those factors, but it did not give them the weight that Husband would have accorded to them. Because deciding on the weight to give each factor is a matter for the trial court’s broad discretion, no error or abuse is shown. “‘In making its spousal support order, the trial court possesses broad discretion so as to fairly exercise the weighing process contemplated by section 4320, with the goal of accomplishing substantial justice for the parties in the case before it.’ [Citation.] In balancing the applicable statutory factors, the trial court has discretion to determine the appropriate weight to accord to each.” (In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 304.) In conclusion, Husband has failed to demonstrate the trial court abused its discretion in modifying spousal support.

We also reject Husband’s claim that the trial court impermissibly relied on the mere possibility of Wife’s future retirement. The trial court expressly held it was not basing its ruling on the possibility of Wife’s retirement.

DISPOSITION

The order of the trial court is affirmed. Costs on appeal are awarded to Wife.

WE CONCUR: Levy, Acting P.J., Detjen, J.

“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.

“(i) Documented evidence of any history of domestic violence.…

“(j) The immediate and specific tax consequences to each party.

“(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.…

“(m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4325.

“(n) Any other factors the court determines are just and equitable.”


Summaries of

In re Marriage of Maciel

California Court of Appeals, Fifth District
Feb 3, 2011
No. F059666 (Cal. Ct. App. Feb. 3, 2011)
Case details for

In re Marriage of Maciel

Case Details

Full title:In re the Marriage of RONALD JOHN MACIEL and SHIRLEY M. MACIEL. RONALD…

Court:California Court of Appeals, Fifth District

Date published: Feb 3, 2011

Citations

No. F059666 (Cal. Ct. App. Feb. 3, 2011)