Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. FL990134
Sepulveda, J.
A marriage of 33 years ended when the parties were approaching retirement age. The parties signed a marital settlement agreement in which the husband agreed to pay wife spousal support. The husband retired seven years later and filed a motion to modify support. The husband claimed a material change in circumstances, namely, reduced income following his retirement and wife’s receipt of social security benefits. The trial court denied the motion. Finding no abuse of discretion, we affirm that decision.
I. FACTS
Daniel J. Regan (Husband) and Joy H. Regan (Wife) had been married for 33 years when they separated in March 1999. At the time of separation, Husband was 58 years old and Wife was 62 years old. Wife was a homemaker who was not employed outside the home. She listed zero as her net monthly disposable income on her income and expense declaration. Husband worked as a human resource specialist for the federal government and declared his net monthly disposable income to be $5,015.91.
In December 1999, the parties reached agreement on the division of community assets and an award of spousal support. Judgment of dissolution, incorporating the marital settlement agreement, was filed in January 2000. The agreement provided, in material part, that (1) the family residence be sold and sale proceeds divided equally between Husband and Wife; (2) Wife receive $1,200 monthly spousal support; (3) Wife receive a portion of Husband’s military pension; (4) Wife receive a portion of Husband’s employment pension after his retirement; (5) Wife receive $36,145 as half of the community’s deferred compensation assets; and (6) Wife receive an equalizing payment of $2,000. The parties agreed that spousal support would terminate upon Wife’s remarriage or death of one of the parties but the court otherwise retained jurisdiction over spousal support.
In April 2007, seven years after entry of judgment, Husband moved for termination or modification of spousal support. (Fam. Code, § 3651.) At the time of the modification motion, Husband was remarried and 65 years old. Husband claimed there were “significant changes of circumstances” since judgment was entered: Husband asserted he had retired with reduced income, and Wife had increased income in the form of social security benefits. Husband declared his monthly gross income, from pensions and social security, to be $5,112.10. Wife was 69 years old and living with the parties’ son, with whom she shared expenses. Wife declared her monthly gross income (apart from spousal support) to be $2,250.45, of which most came from husband’s pensions and $836.50 came from social security.
Wife initially declared her average monthly income to be $1,908.60, but later filed a supplemental declaration with updated figures reflecting recent increases.
Husband’s modification motion was heard on June 11, 2007. Husband’s counsel said an evidentiary hearing was unnecessary and stipulated to have the motion decided on the documents submitted. The court read the documents, heard argument from counsel for both parties, and denied the motion. The court reviewed the circumstances to be considered in ordering spousal support, and found that the circumstances did not warrant a reduction or termination of spousal support. (Fam. Code, § 4320.) The parties did not request a statement of decision. (Code Civ. Proc., § 632; Fam. Code, § 3654.) Husband moved for reconsideration. The motion was denied and Husband appealed to this court.
II. DISCUSSION
“The trial court exercises broad discretion in deciding whether to reduce or terminate a spousal support order. Its order must be based on (1) a material change in facts or circumstances existing at the time the order is made and (2) a consideration of the needs of both parties and their respective abilities to meet their needs. [Citations.] An appealing party must demonstrate the existence of a material change in facts or circumstances and that as a matter of law an abuse of discretion has occurred: ‘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.]’ ” (In re Marriage of Reynolds (1998) 63 Cal.App.4th 1373, 1377.)
Husband failed to demonstrate a material change in circumstances since judgment was entered on the parties’ marital settlement agreement seven years earlier. The asserted change is his retirement, which reduced his gross income and increased Wife’s gross income. It is true that a supporting spouse’s retirement may constitute a material change in circumstances. (In re Marriage of Reynolds, supra, 63 Cal.App.4th at p. 1379.) But it does not always. “[I]n determining what constitutes a change in circumstances the trial court is bound to give effect to the intent and reasonable expectations of the parties as expressed in the [marital settlement] agreement.” (In re Marriage of Aninger (1990) 220 Cal.App.3d 230, 238.)
The parties’ agreement shows that Husband’s retirement was fully contemplated by the parties, and that spousal support was calculated with consideration of the various retirement funds available to the parties. The marital settlement agreement was signed when the parties were near retirement age: Husband was 58 years old and Wife was 62 years old. Husband was already receiving his military retirement pension, and the parties’ agreement reflects a careful division of that pension benefit and Husband’s future employment pension. Husband’s retirement, and the effect it would have on the parties’ income, appears to have been fully considered by the parties. There was no evidence presented that the change in income occasioned by Husband’s contemplated retirement was unexpected. “For a change in circumstances to exist there must have been a material change since the entry of the previous order. 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.)
Husband’s retirement did not materially change the financial position of the parties from the one considered, and accounted for, in the parties’ marital settlement agreement. According to Husband’s income and expense declarations, his total monthly income dropped from $6,371.40 in 1999 to $5,112.10 in 2007. However, there is insufficient evidence that his disposable income was materially reduced. In 1999, his net disposable income (gross income less taxes, social security and other payroll deductions) was $5,015.91. In 2007, his income from pension and social security retirement payments was a similar amount: $5,112.10. While Husband's retirement reduced his gross income, it also reduced deductions from income and taxation. Husband no longer has to make social security and pension contributions, which in 1999 totaled $327.19 monthly. It is also reasonable to conclude that Husband's 1999 monthly tax liability of $954.67 is much reduced in retirement, now that his income is founded upon pensions and social security rather than earned income. The spousal support order also has tax consequences of its own, and reduces Husband's tax liability from the 1999 amount. On this record, Husband has not demonstrated a material change from his 1999 financial position.
On appeal, Husband argues that his current income is actually less than he declared. The trial court was entitled to rely upon Husband’s income and expense declaration. (In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 575-576.)
The only change in Wife’s income from 1999 to 2007 was her receipt of a portion of Husband’s pensions (per the parties’ marital settlement agreement), social security benefits, and a trivial amount of earned interest. Wife’s receipt of social security benefits is hardly an unanticipated change in circumstances from the time of the marital settlement agreement. The agreement reflects a keen awareness of the parties’ approaching retirement and was signed when Wife was 62 years old.
In any event, even if we deem Husband to have made a sufficient showing of a material change of circumstances, the court did not abuse its discretion in denying termination or reduction of spousal support. “Whether a modification of a spousal support order is warranted depends on the facts and circumstances of each case, and its propriety rests in the sound discretion of the trial court . . . . ” (In re Marriage of Hoffmeister (1987) 191 Cal.ApP.3d 351, 357-358.) A trial court must consider a variety of factors in determining whether to modify spousal support, including income, earning capacity, ability to pay, the needs of each party, duration of the marriage, and the age and health of the parties. (Fam. Code, § 4320; In re Marriage of Stephenson (1995) 39 Cal.App.4th 71, 77-78.)
Wife was almost 70 years old when the modification motion was heard and dependent on pensions, social security and spousal support. If spousal support were terminated, Wife’s monthly income would be $2,250.45 and Husband’s would be $5,112.10. Wife declared her monthly expenses to be $3,301.30—an amount she could not pay without spousal support. Husband challenges the accuracy and reasonableness of Wife’s claimed expenses but that challenge is unavailing on appeal. The time to contest Wife’s representations was in the trial court. Husband chose to submit the matter on the documents and may not now hand-pick selected items from those documents for criticism.
The trial court did not abuse its discretion in concluding that spousal support should not be reduced. The $1,200 spousal support payment creates a reasonable balance in the financial condition of parties to a long-term marriage that ended on the cusp of retirement.
III. DISPOSITION
The order is affirmed. Wife shall recover her costs incurred on appeal upon timely application in the trial court. (Cal. Rules of Court, Rule 8.278.) The parties are each responsible for their own attorney fees incurred on appeal.
We concur: Reardon, Acting P.J., Rivera, J.