Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura No. D 265858, Henry J. Walsh, Judge
Jeffrey S. Graff, for Appellant.
Rebbecca Calderwood and Taylor, McCord, Praver & Cherry, Patrick G. Cherry, for Respondent.
YEGAN, J.
Hans F. Schwing appeals from an order denying his motion to modify/terminate spousal support based on the allegation that his ex-wife/respondent, Mary C. Schwing, is living with a female person. Appellant claimed that Family Code section 4323, a burden-shifting presumption on the need for support, applied but failed to make a threshold showing of cohabitation to trigger the presumption. Because this is a judgment roll appeal, we presume that ample evidence was presented to support the judgment and affirm. (See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 354, p. 402; Ehrler v. Ehler (1981) 126 Cal.App.3d 147, 154.) We also point out that the record on appeal, designated by appellant, does not include the moving or responsive papers.
Unless otherwise stated, all statutory references are to the Family Code.
Facts and Procedural History
Appellant appeals from an August 30, 2007 "Notice of Intended Statement of Decision" denying his order to show cause (OSC) to modify/terminate spousal support. The trial court docket reflects that appellant filed the OSC to modify/terminate spousal support on December 14, 2006. The OSC was continued to August 7, 2007, at which time it was taken under submission and denied.
Although the Notice of Intended Statement of Decision is not an appealable judgment, we treat the September 19, 2007 Statement of Decision, which is attached to the civil case information statement, as the order appealed from. (Cal. Rules of Ct., rule 8.100(g); see e.g., County of San Diego v. Arzaga (2007) 152 Cal.App.4th 1336, 1344.)
The Statement of Decision states that respondent lives in Hawaii with a female person and is "sharing" a monthly mortgage payment. The trial court found that section 4223 did not apply and denied the OSC for "lack of evidence. The extent of expense sharing is not developed, and the court is not inclined to make a ruling based on a piecemeal presentation of evidence." This recital shows that the case "turns" on appellant's failure to present a threshold showing which, if shown, would have lead to an evidentiary hearing.
Cohabitation
Section 4323, subdivision (a)(1) states "there is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabitating with a person of the opposite sex." " '[T]he Legislature created the presumption . . . based on thinking that cohabitation . . . creates a change of circumstances so tied in with the payment of spousal support as to be significant enough by itself to require a re-examination of whether such need for support continues in such a way that it still should be charged to the prior spouse.' " (In re Marriage of Geraci (2006) 144 Cal.App.4th 1278, 1298-1299, fn. omitted).
Section 4323 does not apply unless the obligor seeking to reduce spousal support makes a prima facie showing that the obligee is cohabitating with another person of the opposite sex. (Hogoboom & King, Cal. Practice Guide, Family Law (The Rutter Group 2007) [¶] 17:205, p. 17-53; In re Marriage of Thweatt (1979) 96 Cal.App.3d 530, 533-534 [discussing former Civ. Code, § 4801.5].) The statute contemplates more than a roommate or boarding arrangement. (Id., at p. 534.) There must be a sexual, romantic, or homemaker-companion relationship. (Id., at pp. 534-535; In re Marriage of Bower (2002) 96 Cal.App.4th 893, 901.)
Other than an alleged shared mortgage payment, appellant made no showing of cohabitation, shared living expenses, or that respondent lives in the same household with someone else. Appellant reliance on 4323 is misplaced because a presumption is not evidence. (Evid. Code, § 600, subd. (a).) Until appellant establishes cohabitation, the burden does not shift to respondent to overcome the presumption that her need for support has decreased. (In re Marriage of Denney (1981) 115 Cal.App.3d 543, 556.)
Appellant argues that section 4323, subdivision (a)(1) should apply where the payee ex-spouse cohabitates with any person. Based on appellant's theory, an ex-spouse sharing a mortgage payment with any person, such as a parent or an adult child, has a reduced need for support. The sweep of the statute is not that broad.
Appellant claims that section 4323 is discriminatory and conflicts with other laws granting gay and lesbian couples certain rights as domestic partners. (See e.g., Fam. Code, § 297 et seq.) Because section 4323, subdivision (a)(1) singles out cohabitation with a person of the opposite sex, it grants respondent more support rights if she cohabitates with a female person. We disagree. Even if we assumed that respondent shared a mortgage payment with a male person, the trial court would still have denied the motion for lack of evidence.
Because appellant failed to make a threshold showing of cohabitation, we do not decide whether section 4323 applies to same-sex cohabitators. Nor should we decide abstract or hypothetical issues about the potential discriminatory effect of section 4323. (See e.g., Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 180 ["petitioners cannot prevail by suggesting that in some hypothetical situation constitutional problems may possibly arise as to the particular application of the statute . . . "].) Courts do not reach constitutional issues unless required to do so. (Levin v. Adalberto M. (2007) 156 Cal.App.4th 288, 292, fn. 2.)
Appellant's reliance on the Domestic Partner Registration Act (§ 297) is misplaced because there is no evidence that respondent is cohabitating with a domestic partner. Nor does the equal protection right to same-sex marriages (see In re Marriage Cases (2008) 43 Cal.4th 757) overcome the requirement that appellant make a threshold showing of cohabitation before a trial court applies section 4323 as a burden shifting presumption.
The judgment (order denying OSC to modify/terminate spousal support) is affirmed. Respondent is awarded costs on appeal.
We concur: GILBERT, P.J., COFFEE, J.
Contrary to appellant's oral argument, at no place in the intended Statement of Decision does the trial court make a finding of cohabitation.