From Casetext: Smarter Legal Research

In re Marriage of Roberts

California Court of Appeals, Second District, Second Division
Feb 3, 2011
No. B215097 (Cal. Ct. App. Feb. 3, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. YD050470. Mark A. Juhas.

Stephen Temko for Appellant.

Feinberg, Mindel, Brandt & Klein and Wallace S. Fingerett for Respondent.


CHAVEZ, J.

Appellant William J. Roberts (William) appeals from a judgment of dissolution of his marriage to respondent Laura Roberts (Laura). William contends the judgment must be reversed because the trial court erred by failing to consider his needs and the tax consequences to both parties when the court issued its permanent spousal support order. William further contends the trial court erred by ordering a reduction in support payments on a step-down basis every few years without any evidence that William would have decreased needs or increased financial ability in the future. We affirm the judgment.

BACKGROUND

William and Laura were married on August 16, 1992. They separated on November 25, 2005, after 13 years of marriage. They have one minor child, born in February 1995, who is autistic.

In May 2007, the trial court issued an order requiring Laura to pay William interim spousal support in the amount of $9,625 per month. At the same time, the trial court issued a Gavron admonition to William and ordered him to seek employment and to keep a log of his efforts in that regard.

In re Marriage of Gavron (1988) 203 Cal.App.3d 705 [supported spouse’s failure to make good faith efforts to become self sufficient can constitute a change in circumstances warranting a modification in spousal support if the supported spouse is made aware of the obligation to become self-supporting].

The trial commenced in December 2007 and continued over several days in December 2007, and January and February 2008. At the time of the trial, Laura was a 60 percent record owner of a corporation named Autistic Behavior Consultants (ABC), a business started in the couple’s garage in the year 2000 to provide services for children with autism. ABC’s revenues, which came from school districts and state regional centers, grew steadily in the ensuing years. In 2003, ABC had gross revenues of approximately $1.2 million. In 2007, ABC had gross revenues of more than $5 million and employed between 95 and 105 people.

At the time of the trial, William was 59 years old, unemployed, and residing in a condominium owned by the couple in San Diego. He had moved to San Diego from Los Angeles in September 2005 with the intent of winding down his law practice and focusing his efforts on one last big case against the City of San Diego. William had worked as a plaintiff’s personal injury attorney for 32 years and was the family’s primary source of income during the first 11 years of the marriage. From 2001 through 2003, he earned net income between $150,000 to $200,000. He had no income in 2004 and 2005.

William’s case against the City of San Diego was ultimately unsuccessful, and he began looking for employment in San Diego in 2006. He was briefly employed for four months in 2007 by an insurance defense law firm. Between May 2007 and the time of trial, William spent one day a week searching for legal jobs online and in the newspapers. He sent his resume to several law firms but was unable to obtain employment either as a lawyer or as a mediator. He applied for no non-legal positions.

William experienced health problems in the fall of 2007, when he was hospitalized for 18 days. A letter from William’s doctor was admitted into evidence. The letter, dated October 24, 2007, stated that William could perform sedentary work in approximately six weeks from the date of the letter. William testified at trial that after his discharge from the hospital, his doctor advised him that he was capable of working in a sedentary, non-stressful job. William further testified that he was willing to assume control of ABC, that he could run the company from San Diego, and that he did not believe the job would be too stressful for him.

At the conclusion of the trial, both parties requested a statement of decision, and the trial court issued a 19-page tentative statement of decision in response to those requests. The trial court found that over the last five years of the marriage, the average marital income was $278,000, but that for much of this time period, there were three children in the home. The court concluded that the marital lifestyle was middle class.

The trial court found that William had not been diligent about seeking employment, and that his efforts to seek work since the court’s Gavron admonition were half-hearted at best. The court noted that William’s job hunting log was “remarkable in its virtually complete lack of dedication or effort in finding a job” and that William was “simply not seeking employment or retraining at all.” The trial court further found that William is employable, based in part on William’s own testimony that he is capable of assuming control of ABC. The court noted that there was no medical evidence, apart from William’s own testimony, concerning any physical or health limitations on his ability to work in a sedentary job, and that there was no evidence as to any restrictions on his ability to work after January 2009.

The trial court ordered spousal support in the amount of $6,000 per month for the period beginning April 1, 2008, and ending December 31, 2009; $2,500 per month until December 31, 2011; $1,500 per month until December 31, 2013; and zero thereafter.

Neither party filed objections to the tentative statement of decision. Judgment was subsequently entered, and this appeal followed.

DISCUSSION

I. Applicable Law and Standard of Review

When awarding spousal support, a trial court must consider the factors set forth in Family Code section 4320. (In re Marriage of Kerr (1999) 77 Cal.App.4th 87 (Kerr).) Included among these factors are “[t]he extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account... [t]he 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[, ] [t]he needs of each party based on the standard of living established during the marriage, ” and “[t]he immediate and specific tax consequences to each party.” (Fam. Code, § 4320, subds. (a)(1), (d) & (j).) Once the trial court has considered these factors, “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.] ‘Because trial courts have such broad discretion, appellate courts must act with cautious judicial restraint in reviewing these orders.’ [Citation.]” (Kerr, supra, 77 Cal.App.4th at p. 93.)

Family Code section 4320 lists the other factors to be considered by the trial court in awarding spousal support as: “(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, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party. [¶] (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. Except in the case of a marriage of long duration as described in Section 4336, a ‘reasonable period of time’ for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties. [¶] (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.”

II. Challenge to the Absence of Specific Findings

William challenges the initial spousal support award, arguing that the statement of decision contains no findings concerning his needs, which exceed the $6,000 per month awarded by the trial court for the period beginning April 1, 2008, and ending on December 31, 2009, and no finding regarding the tax consequences of that award. The trial court expressly stated that its tentative decision would become the final statement of decision if neither party objected within 10 days. William filed no objections, request for clarification, or any other challenge after the tentative statement of decision was issued. A party who fails to object or assert a claimed deficiency to a statement of decision in the trial court waives the right to assert error on appeal. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1132.) If a party challenging a statement of decision fails to bring omissions or ambiguities to the trial court’s attention, an appellate court will infer that the trial court made implied factual findings favorable to the prevailing party on all issues necessary to support the judgment, including any omitted or ambiguously resolved issues. (Id. at pp. 1133-1134.) William did not challenge the absence of any specific findings in the statement of decision issued by the trial court and therefore forfeited the right to do so in this appeal. (Id. at p. 1132.)

III. Substantial Evidence Supports the Spousal Support Award

Substantial evidence supports the trial court’s spousal support award. The trial court based the initial award of $6,000 per month on several factors, including the court’s assessment of the marital standard of living during the last five years of the marriage, based on family income as disclosed in the last five years of joint tax returns filed by the couple. The trial court noted that the average annual income during this period was $278,000, but that three children were also living in the home at the time. After the couple separated, one child -- their 13-year-old son -- lived primarily with Laura and spent approximately four days a month with William.

Substantial evidence also supports the trial court court’s order reducing the amount of support payments on a step-down basis every few years. Such step-down support orders must be based on reasonable inferences to be drawn from the evidence. (In re Marriage of Prietsch & Calhoun (1987) 190 Cal.App.3d 645, 656.) The court here based its order on reasonable inferences drawn from the evidence, including William’s age, occupation, skills, education, and health, as well as his willingness to work. As an attorney, William at times earned up to $200,000 per year. Based on William’s training and skills as a lawyer, as well as his past earning history, the trial court found that William was capable of self-support. Although William’s health issues limited his current job prospects, the court found him capable of seeking work in another field. William himself testified that he believed he was presently capable of taking over the management of ABC, that in the short term he would like to find sedentary, non-stressful employment outside the legal profession, and that in the longer term he wished to start another legal practice.

As evidence that his needs exceeded the $6,000 per month in spousal support awarded by the trial court, Williams cites his income and expense declaration, which lists monthly expenses in excess of $16,000. The trial court discounted many of these claimed expenses, however, which included a $20,000 truck purchased as a gift for an older son, $40,000 expended on two high definition television sets and accompanying audio equipment, and monthly payments of $600 to $750 to another adult son. William’s challenge to the sufficiency of the evidence, premised on the existence of conflicting evidence in the record, does not warrant reversal of the trial court’s order. Under the substantial evidence standard, “the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion. [Citations.]” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874, italics omitted.) The trial court’s decision in this case was supported by substantial evidence and its spousal support order was not an abuse of discretion.

IV. Tax Consequences of Spousal Support Award

William’s contention that the trial court failed to consider the tax consequences of the support award is also unavailing. The record shows that the trial court was aware of its duty to consider, under Family Code section 4320, subdivision (j), the immediate and specific tax consequences to each party, but found that no such evidence had been presented. There is no evidence in the record regarding the tax consequences of the spousal support award and no indication that William sought to present such evidence. The trial court accordingly did not err in finding there was no evidence offered regarding the tax consequences to the parties.

DISPOSITION

The judgment is affirmed. Laura is awarded her costs on appeal.

We concur: BOREN, P. J., DOI TODD, J.


Summaries of

In re Marriage of Roberts

California Court of Appeals, Second District, Second Division
Feb 3, 2011
No. B215097 (Cal. Ct. App. Feb. 3, 2011)
Case details for

In re Marriage of Roberts

Case Details

Full title:In re the Marriage of WILLIAM and LAURA ROBERTS WILLIAM ROBERTS…

Court:California Court of Appeals, Second District, Second Division

Date published: Feb 3, 2011

Citations

No. B215097 (Cal. Ct. App. Feb. 3, 2011)