Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 01D006382, Francisco Firmat and Frederick P. Aguirre, Judges.
Ostergar Hunter Law Group and Daniel C. Hunter IV for Appellant.
Jonas, Harvey & Keese and Robert J. Keese for Respondent.
BEDSWORTH, ACTING P. J.
Michael Sisson appeals from the judgment in this marital dissolution action. Specifically, he challenges the portions of the judgment awarding his former wife, Kathy Sisson, permanent spousal support in the amount of $2,000 per month, and ordering him to pay more than $100,000 of the attorney fees and costs she has incurred herein.
Michael argues the spousal support award must be reversed because the court failed to consider each of the factors set forth in Family Code section 4320. Although Michael unnecessarily (and implausibly) asserts the court failed to consider nearly every singlefactor set forth in the statute, the court’s judgment explicitly rejects consideration of one important factor, while failing to acknowledge a second – also significant – one. Consequently, we agree the spousal support order must be reversed.
Because the parties share the same last name, we refer to each by first name for the sake of clarity. No disrespect is intended.
All further statutory references are to the Family Code unless otherwise indicated.
Moreover, even had the court properly applied all of the factors included in section 4320 in assessing support, we would be compelled to reverse the order. In analyzing the issue from scratch, the court overlooked a stipulation entered into between the parties way back in 2002 (and then reduced to a court order) by which they agreed that Michael would pay Kathy spousal support in the amount of $1,000 per month. Because the parties did not acknowledge the effect of that stipulation in their briefs on appeal, we directed they provide us with supplemental briefing to address the issues of (1) whether the stipulation and order specified an amount of permanent, rather than pendente lite, support; (2) whether that stipulation and order was ever vacated or set aside by the court; (3) whether the parties were required to demonstrate any material change in circumstances to warrant a modification of the spousal support amount set forth in the stipulation and order; and (4) whether either party argued at trial that a material change in circumstances warranted a modification of that order.
We conclude the stipulation and court order, which explicitly govern the issue of spousal support until one of the parties dies, Kathy remarries, or the court issues a further order, necessarily constituted a stipulation for permanent, rather than merely pendente lite, support. And while the parties later agreed to vacate a default judgment which had incorporated the terms of that stipulation and order, they now acknowledge that they never agreed to vacate the stipulation and order itself, and there is nothing in the record to suggest that occurred. Consequently, the stipulation and order remained in effect at trial, and the court had no power to modify it except upon a showing of a material change in circumstances. Neither party averred such a change.
As for the attorney fee and cost award, Michael correctly points out such awards must be based on a determination the paying party is reasonably likely to be able to pay. No such determination was expressly made in this case, and while we might ordinarily infer it, the court’s other findings contained in the judgment – including its express denial of any consideration of Michael’s assets and obligations – preclude us from doing so. Moreover, the terms of the judgment itself require Michael to pay substantial cash sums to Kathy, both in compensation for his use of equity in the marital home to defray his expenses during the years-long dissolution proceeding, and as the result of five years of retroactive spousal support ordered as part of the judgment. We thus cannot infer any determination that Michael had a greater ability to pay Kathy’s attorney fees in the wake of the judgment than she had.
We consequently reverse the judgment, and remand the case to the trial court with directions to (1) order spousal support in compliance with the 2002 stipulation and order; and (2) reconsider the orders that Michael pay portions of Kathy’s attorney fees and costs, and pay additional fees to her former counsel.
FACTS
After a marriage of 16 years, Michael and Kathy separated in November of 2001 and Kathy filed a petition for dissolution. Both parties had worked full-time during the marriage, although Michael was apparently able to earn a substantially higher salary than Kathy. In March of 2002, the parties stipulated to joint legal and physical custody of their son, then approximately 15 years old. As part of that same stipulation, Michael agreed to pay Kathy $700 per month in child support, as well as $1,000 per month in spousal support commencing in March of 2002, and “continuing until either party dies, [Kathy] remarries, or further order of the court.” The court entered that stipulation as a court order.
Kathy filed her petition in July of 2001, several months before the parties’ official separation date.
In June of 2002, the court entered a default judgment against Michael, which essentially incorporated the terms of the earlier stipulation and order. The judgment also disposed of other disputed property issues, including a specification that the parties’ marital home would be sold, and the proceeds divided. That judgment, except as to status, was set aside in December of 2002.
In March of 2003, the parties stipulated that Michael could refinance the marital home, and use a portion of the proceeds to pay specified debts. Any remaining proceeds were to be held in a trust account for the parties’ joint benefit.
On November 5, 2003, Kathy filed an order to show cause for modification of the March, 2002 stipulation and order, seeking changes in spousal support and child support, as well as attorney fees. That order to show cause remained pending as to the issues of spousal support and attorney fees until the trial commenced in February of 2004, hence those issues were incorporated into the trial.
That trial was finally completed, and the case submitted for decision, in September of 2007, which was three and one-half years after it commenced. That is not a typographical error. Sessions of the trial were held on more than twenty separate days during that three and one-half year period. Apparently, the court addressed and resolved various discrete issues along the way, leaving the issues of spousal support, division of community property, and attorney fees to the last. In April of 2006, Michael moved for a mistrial, based upon the lengthy period of time which had passed and the numerous days of trial consumed without completing the case. The motion was denied, the court explaining that delays were unavoidable given that the court conducted trials only in the afternoons, and was thus “unable to grant attention to a trial on a one-trial basis that is, starts the trial and continues it until the end in a continuing day basis.” The court acknowledged “we’ve had to piecemeal this trial over a period of, as has been stated, over a period of four years in attempts to resolve the issues and we have resolved other issues in the past. We’ve taken and we’ve bifurcated and we resolved other issues.”
For example, in August of 2004, the court found that the parties’ marital residence was community property, and that their earlier stipulation to allow its refinancing had not been intended as a marital settlement agreement. In November of 2004, the court concluded that “the value of the BMW automobile” was $25,041, as of August of 2003.
On September 18, 2007, the court issued a $21,500 fee award to Kathy’s former counsel, Mr. Goldman, who had withdrawn from the case more than three years earlier, pursuant to In re Marriage of Borson (1974) 37 Cal.App.3d 632 (allowing a discharged attorney to pursue a request for direct fee payment from the former client’s spouse if the request is expressly or impliedly authorized by the former client). The court, however, reserved jurisdiction to decide which party would be obligated to pay those fees.
After the trial finally ended, the court took the remaining issues under submission, and issued its statement of decision by minute order dated December 21, 2007. The court’s statement of decision found that after Michael refinanced the marital residence in March of 2003, pursuant to the parties’ stipulation, he had made unauthorized payments out of the proceeds, including a payment to his then-attorney. To equalize those unauthorized expenditures, Michael was ordered to pay Kathy $34,399, forthwith.
Moreover, in both November of 2003 and February of 2004, Michael again refinanced the property, taking out additional equity in each instance. However, the court explicitly rejected Kathy’s assertion that Michael had done so with fraudulent or malicious intent, and simply ordered that Michael pay Kathy one-half of the net proceeds of each refinancing, totaling approximately $48,000.
Although the court did not explain its reasoning in this regard, we note that both unauthorized refinancings had been accomplished during the period in which the parties were apparently in disagreement concerning whether the initial refinancing stipulation had been intended as a settlement of their respective interests in the property.
Finally, the court concluded that the value of the residence “at the time of trial” was $542,000, with a mortgage of nearly $489,000, and that Kathy was entitled to one-half of the remaining equity, or approximately $27,000.
The home’s value “at the time of trial” would seem difficult to express as a static number, since the “trial” extended over a period of nearly four years. Nonetheless, as no one has objected to the valuation, we presume it is acceptable to the parties.
The court denied Kathy’s request for reimbursement of her share of the rental value of the marital home during the pendency of the dissolution proceeding. (See In re Marriage of Watts (1985) 171 Cal.App.3d 366.) The court noted that Michael had made the mortgage payments during his continued residence in the home – payments which had risen to $4,100 per month in the wake of the last refinancing, and had at all times exceeded the home’s rental value.
With respect to the issue of spousal support, the court first appeared to conclude that as a result of the parties’ December, 2002 agreement to set aside the default judgment, the earlier stipulation and order, which had set spousal support in the amount of $1,000 per month, had no continued effect. The court then concluded that since the parties’ stipulation to set aside the default had specifically left in place the aspect of that June 28, 2002 judgment, which terminated their marital status as of that date, it would be required to consider Kathy’s entitlement to permanent (rather than pendente lite) spousal support, from that point forward.
This point is rather confused, as the court specifically acknowledges, at another point in the statement of decision, that Kathy’s order to show cause to modify spousal support, which was filed three months after the default judgment was set aside, had been a request to modify that stipulation. It was that order to show cause regarding spousal support which was being ruled upon in the trial. The point is repeated in the judgment.
The court analyzed the permanent support issue in the context of factors set forth in section 4320. It found that Kathy had worked during the marriage, except for a brief period after the birth of the parties’ son. Moreover, she had “fine marketable skills as an accounting manager/controller in the construction industry.” Neither party had obtained formal education or training during their marriage. The court characterized the marital standard of living as “middle class,” and noted that Michael had earned roughly $150,000 per year in 2001 (the order does not include a finding as to Kathy’s income prior to 2003).
The court also found that while Michael had consistently earned a higher salary than Kathy since the parties’ separation, his salary had decreased from a high of approximately $26,000 per month in 2002-2005, to $13,000 per month in 2006 and 2007. By contrast, Kathy’s income had increased from $5,333 per month in 2003, to $6,000 per month in 2007. The court found that both Kathy, at age 50, and Michael, aged 59, were in good health and had a continued ability to work.
The court then reasoned that the “balance of hardships” favored an award of spousal support to Kathy, because Michael earns “almost three times [her] income” and “has enjoyed continued use of the family residence.” Based upon that balance, the court rather confusingly concluded Michael is “much better suited... to provide spousal support to [Kathy]” – apparently suggesting the award of spousal support was a given, and the balance being struck was simply a means of deciding which party should be the payor, and which the payee.
In any event, the court awarded Kathy spousal support in the amount of $2,000 per month, and then provided that support would be payable commencing January 1, 2003 – making the award retroactive for a period of five years prior to issuance of the statement of decision, and 11 months prior to the date upon which Kathy filed her order to show cause for modification of the March, 2002 stipulation and order, pertaining to the issue.
The court then reserved jurisdiction on the issue of attorney fees, and directed the parties to submit declarations concerning the issue by February 1, 2008. On March 7, 2008, the court issued an order requiring Michael to pay Kathy $75,000 for attorney fees, and $8,000 for costs, in accordance with sections 270, 2030 and 2032. The court specified the debt must be paid at a rate of $2,000 per month commencing April 1, 2008, and provided if Michael made two consecutive payments more than 10 days late, his entire balance would become due “with legal interest.” The court also ordered Kathy to prepare the formal judgment.
The court signed the formal judgment on May 1, 2008. The judgment largely hews to the terms of the court’s statement of decision, but with a few significant additions. As pertinent here, those additions include an analysis of the spousal support order in terms of each factor set forth in section 4320. Specifically, the judgment includes the court’s findings relevant to most of the factors, while candidly acknowledging that the court did not consider certain others. Some of the factors eschewed by the court can be understood as an implied determination that the issue was irrelevant in the circumstances of this particular case: e.g., the court’s determination that “[t]he 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” (§ 4320, subd. (a)(2)) was not a factor to be considered, can be read as merely an acknowledgement that neither party had claimed any such impairment.
Similarly, the judgment denies consideration of “[t]he 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.” (§ 4320, subd. (g).) Again, this may indicate the court simply found the factor irrelevant, since the parties’ son was then an adult.
However, one of the other factors expressly dismissed by the court as a basis of its award was “[t]he obligations and assets, including the separate property, of each party.” (§ 4320, subd. (e).) Although this would seem to be an important consideration in assessing any request for permanent spousal support, the judgment states flatly that “[t]he court did not consider [this factor] in determining permanent spousal support.”
The judgment also reflects no consideration of “[t]he goal that the supported party shall be self-supporting within a reasonable period of time.” (§ 4320, subd. (l).) The point is simply not mentioned, despite the fact that Kathy was reasonably young at the time of dissolution, was found to have “fine marketable skills” and had consistently worked full-time both during and after the marriage.
Michael moved to vacate the judgment, arguing specifically that the award of spousal support could not be sustained. The court denied the motion.
I
Awards of permanent spousal support are governed by section 4320, which provides: “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, 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.”
In considering an award of permanent spousal support, the court has no discretion to ignore any of the factors listed, except to the extent they are irrelevant in the particular circumstances of the case. “In ordering spousal support, the trial court must consider and weigh all of the circumstances enumerated in the statute, to the extent they are relevant to the case before it.... [¶]... [¶]... [T]he court does not have discretion to ignore any relevant circumstance enumerated in the statute. To the contrary, the trial judge must both recognize and apply each applicable statutory factor in setting spousal support. [Citations.] Failure to do so is reversible error. [Citations.]” (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 302-304, fn. omitted; see also In re Marriage of McTiernan and Dubrow (2005) 133 Cal.App.4th 1090, 1106 [“a sustainable exercise of discretion requires that the trial court have considered and applied all relevant factors under section 4320.”].)
In this case, Michael contends the court erred in refusing to consider each of the relevant factors set forth in section 4320, and we agree. Unfortunately, much of Michael’s argument reads like an ill-disguised attack on the sufficiency of the evidence. Among other things he laments that the judgment “does not reflect [the court’s] consideration of evidence that [in the wake of the parties’ separation, Kathy] bought a condominium and lived in apartments with swimming pools without the need for roommates to defray expenses.” He also contends the court “did not independently consider evidence that the parties lived beyond their means during marriage....” Of course, we must presume the court did consider that evidence, as well as all other relevant evidence, but simply found it less compelling than Michael had hoped. Likewise, we cannot infer, as Michael suggests, that the court failed to properly “weigh” certain evidence.
Our power to review factual contentions “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.” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874, italics omitted.) “‘[W]e have no power to judge of the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom.’ [Citation.]” (Leff v. Gunter (1983) 33 Cal.3d 508, 518.) “Our role is limited to determining whether the evidence before the trier of fact supports its findings.” (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 766, citing Reddy v. Gonzalez (1992) 8 Cal.App.4th 118, 123.)
However, even without indulging in such evidentiary second-guessing, we are compelled to reverse the court’s award of permanent spousal support as violative of the requirements of section 4320 because the formal judgment explicitly states the court “did not consider the factors provided in... Section 4320[, subdivision] (e) [pertaining to the parties’ respective assets and obligations] in determining permanent spousal support.” (Italics added.) That is a significant factor, and bears heavily on the questions of (1) whether and to what extent the payor spouse can afford to pay support; and (2) whether and to what extent the payee spouse actually needs it. Subdivision (e) is presumably quite relevant in every spousal support case, and thus the court’s express refusal to consider it here obligates us to reverse.
Admittedly, there is some overlap between the factors set forth in subdivision (e), which the judgment recites were not considered, and those set forth in subdivision (c). Subdivision (c) of section 4320 requires the court to consider “[t]he 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.” And the judgment does recite that the court did consider “the respective party’s earning capacities and their assets” as part of assessing that factor. But, the court’s detailed findings in connection with subdivision (c) focus exclusively on the parties’ respective earnings histories, leading to the sole factual conclusion that “[Michael’s] earning capacity is clearly far superior to [Kathy’s] earning capacity.” Neither party’s assets, if any, is even mentioned. Nor does the court address the parties’ respective “obligations,” as is required by subdivision (e.) Consequently, we cannot conclude the court’s refusal to consider subdivision (e) of section 4320 is ameliorated, let alone cured, by its assessment of subdivision (c).
The court’s spousal support award also appears to ignore another relevant, and significant, factor in its assessment of the spousal support issue. Subdivision (l) of section 4320 obligates the court to consider “the goal that the supported party shall be self-supporting within a reasonable period of time.” Here, the court’s judgment expressly acknowledges each factor set forth in section 4320, whether or not deemed relevant, and whether or not actually considered, except subdivisions (l) and (m). The omission of subdivision (m) is certainly understandable, as it relates to “[t]he criminal conviction of an abusive spouse,” and has no application to this case. But the “goal” that each spouse become “self-supporting within a reasonable period of time” is clearly applicable here, as it is in every case. It may not be an achievable goal in every case, but it is still a goal which the statute and case law requires to be considered.
“Today,... a court ordering spousal support must consider, inter alia, ‘[t]he goal that the supported party shall be self-supporting within a reasonable period of time.’ (§ 4320, subd. (k).) The law has thus progressed from a rule that entitled some women to lifelong alimony as a condition of the marital contract of support to one that entitles either spouse to postdissolution support for only so long as necessary to become self-supporting.” (In re Marriage of Pendleton & Fireman (2000) 24 Cal.4th 39, 53.)
To be clear, once the marriage has ended, a higher-earning spouse may be ordered to pay support to a lower earning spouse, as a means of assisting the latter in adjusting to his or her self-supporting life. Such support may be particularly warranted in cases where one spouse contributed to the earning capacity of the other, such as by supporting him or her during a period of higher education, or when that spouse sacrificed his or her own earning capacity in favor of assuming responsibility for domestic duties. And in some cases, especially ones in which the marriage was of a long duration, and the supported spouse never earned any significant income, that period may even extend indefinitely, until the day when the supported spouse dies or remarries. Some people, whether due to advanced age, lack of skills or education, or disability, simply will never be able to achieve self-supporting status.
These principles were cogently summarized by our Supreme Court in In re Marriage of Morrison (1978) 20 Cal.3d 437, 453-454 (Morrison): “Limiting the duration of support so that both parties can develop their own lives, free from obligations to each other, is a commendable goal.... [¶]... [¶]... In some instances the record will indicate that both spouses are employed, an increasingly prevalent situation today, or that there are sufficient assets available to enable each to provide for his or her needs. In that event, no support or support for only a limited time, without a retention of jurisdiction, would be appropriate. (Civ. Code, §§ 4801, subd. (a), 4806.) Where jurisdiction has been retained in the original order, future modification hearings may well reveal that the supported spouse has found adequate employment, has delayed seeking employment, or has refused available employment. At that time, the court may appropriately consider such factors in deciding whether or not to modify its original order. (See, e.g., In re Marriage of Rosan [(1972)] 24 Cal.App.3d [885,] 896; In re Marriage of Lopez [(1974)] 38 Cal.App.3d [93,] 116.) [¶] In some cases the supported spouse may never be able to adequately provide for his or her needs. A wife who has spent her married years as a homemaker and mother may, despite her best efforts, find it impossible to reenter the job market. In such a case ‘the husband simply has to face up to the fact that his support responsibilities are going to be of extended duration — perhaps for life. This has nothing to do with feminism, sexism, male chauvinism.... It is ordinary common-sense, basic decency and simple justice.’ (In re Marriage of Brantner [(1977)] 67 Cal.App.3d [416,] 420.) The same will, of course, be expected of a wife in those cases in which a husband has devoted his time to maintaining the home and raising the children while the wife has pursued a career outside the home.”
But given the explicit statutory goal that both spouses should be self-supporting within a reasonable period of time, the cases in which spousal support payments continue indefinitely should be the exception. In general, the supported spouse will be expected to make reasonable efforts to become self-supporting, and a failure to do so will be considered grounds for a reduction or termination of support. (See In re Marriage of Shaughnessy (2006) 139 Cal.App.4th 1225.) The court here thus erred in failing to consider this important goal.
II
However, even had the court properly considered all of the relevant factors contained in section 4320 in arriving at its award of spousal support, we would still be required to reverse the award, based upon a more fundamental error. Stated simply, the court erred in assessing the spousal support issue from scratch, without recognizing that the parties had entered into a stipulation which governed the issue, and the court had already issued an order in accordance with the terms of that stipulation, way back in 2002.
Although Kathy argued in her supplemental briefing that the 2002 stipulation was intended to govern merely pendente lite, rather than permanent, support, we cannot find support for that contention in the record. Kathy’s entire argument is based upon the timing of the stipulation – she points out that it was entered into toward the beginning of the dissolution process, and pendente lite support is generally awarded early in the proceedings, as a means of maintaining the status quo pending trial. But Kathy’s assertion ignores utterly the very specific language of the stipulation and order. It provides that the stipulated support amount will continue until she remarries, either party dies, or the court orders otherwise. That is the language of a permanent, not a temporary, award. Moreover, when Kathy obtained her default judgment in this case (later vacated), it expressly incorporated the stipulated support order as part of that final judgment. Kathy’s inclusion of the support order in the default judgment is simply inconsistent with her present assertion that the stipulated support was intended to apply only during the pendency of this proceeding – and that a new, permanent award was to be established as part of the final judgment. We thus have no choice but to conclude the 2002 stipulation and order was intended to establish the award of permanent spousal support in this case.
That means it could not be changed in the absence of a showing of changed circumstances. As this court explained in In re Marriage of McCann (1996) 41 Cal.App.4th 978, 982, “[m]odification of spousal support, even if the prior amount is established by agreement, requires a material change of circumstances since the last order. (In re Marriage of Biderman (1992) 5 Cal.App.4th 409, 412; In re Marriage of Aninger (1990) 220 Cal.App.3d 230, 238; In re Marriage of Norvall (1987) 192 Cal.App.3d 1047, 1060; In re Marriage of Kuppinger (1975) 48 Cal.App.3d 628, 633.) Change 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 Hoffmeister (1984) 161 Cal.App.3d 1163, 1173; In re Marriage of Cobb (1977) 68 Cal.App.3d 855, 860-861.)”
Here, in contravention of that rule, the court’s judgment ignored the parties’ prior stipulation, apparently based upon the erroneous assumption the parties’ agreement to set aside a default judgment incorporating that stipulation was also effective to vacate the stipulation itself. It was not. The agreement to set aside the judgment makes no reference to the stipulation at all.
Moreover, as both parties now acknowledge, that stipulated court order was not otherwise vacated or set aside by the court. This is consistent with the recitation in the court’s judgment, stating that when Kathy sought to modify spousal support in November of 2003 (11 months after the default judgment had been set aside), she filed an order to show cause seeking to modify the stipulation – thus reflecting the parties’ understanding at that time that the stipulation remained in effect.
Unfortunately, the court failed to accord the proper significance to that stipulation in assessing Kathy’s request for an increased amount of support at the time of trial, and thus failed to apprehend that she was obligated to demonstrate some material change in circumstances, occurring since the time of the stipulation and order, to justify an increase in that already established support amount. Rather than obligating her to make that showing, the court assumed it should assess the issue of support from scratch, and reach its own determination as to an appropriate amount. That was error.
Of course, the court was not helped by the parties in this regard, since neither appears to have recognized that the issue of permanent spousal support was controlled by the 2002 stipulation, and that a modification of that order could be had only upon a showing of changed circumstances. In his supplemental brief, Michael does claim to have argued the existence of “changed circumstances,” but he cites only evidence suggesting such an argument could have been made (e.g., evidence of the changes in the parties’ respective incomes, and evidence supporting his contention that Kathy was capable of supporting herself), and not to any assertion that modification of the original stipulated support order was the relevant issue to be addressed.
Because neither party argued for a modification of the 2002 stipulated spousal support order as part of the trial in this case, we conclude that any claim for such a modification was waived as of that time, and the judgment should have simply incorporated the stipulated amount of $1,000 per month. Thus, on remand, the court need not reconsider whether such a modification might have been appropriate, in favor of either party, for any retroactive period. If either party believes that such a modification is presently warranted, a new order to show cause may be filed to prompt an assessment of the issue.
III
Michael also contends the court erred in refusing to grant his request for a mistral, based upon the attenuated trial proceedings, and suggests the denial reflects the court’s failure to consider “principles of overall fairness and equity” in deciding this case. We sympathize with the difficult lot of the family law bench. No one does more important work in less time. But we must reluctantly conclude that a trial conducted on various dates sprinkled here and there over a period in excess of three years indicates that something went terribly wrong in this case.
We cannot determine exactly who was most responsible for these staggering delays, or whether they actually impacted the result in a way that was prejudicial to either side. Michael doesn’t even pretend to establish that the extended time frame worked to his detriment in any specific way; he merely complains of it in a general “anything that might get me a reversal is worth arguing” sort of way. That is insufficient to justify our review of the issue of delay itself as a basis of reversal.
However, given the extraordinary delays that were allowed to occur in this case, we would be remiss if we did not comment. A trial simply cannot be allowed to drag out for as long as this one did. As explained in Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1368, “family law litigants should not be subjected to second-class status or deprived of access to justice. Litigants with other civil claims are entitled to resolve their disputes in the usual adversary trial proceeding governed by the rules of evidence established by statute. It is at least as important that courts employ fair proceedings when the stakes involve a judgment providing for custody in the best interest of a child and governing a parent’s future involvement in his or her child’s life, dividing all of a family’s assets, or determining levels of spousal and child support. The same judicial resources and safeguards should be committed to a family law trial as are committed to other civil proceedings.”
Among other problems, the delays in this case meant that the spousal support award finally issued was made retroactive to January of 2003 – five years earlier. This is troubling for at least two significant reasons. As the judgment plainly reflects, the parties’ respective incomes changed markedly during that five-year period. His went down, from roughly $26,000 per month in 2003-2005, to roughly $13,000 per month in 2006-2007. By contrast, hers went up, from roughly $5,000 per month in 2003-2005, to roughly $6,000 per month in 2006-2007. Yet the amount of spousal support which the court found to be appropriate during that entire period never changed: $2,000 per month. We have a hard time viewing such income disparities, in a vacuum, as immaterial to the establishment of a proper level of spousal support.
Yet the court’s judgment appeared to treat these wildly differing income amounts over the lengthy five-year period as insignificant, and to have instead imposed a support order which seemed abstractly “right,” but without actually acknowledging or examining those income changes over the retroactive period. That was erroneous. If the court is going to allow a support modification request to drag on as long as this one did, the court will also have to undertake the onerous task of analyzing the proper amount of retroactive support for each point at which the parties’ circumstances changed during the retroactive period. Admittedly, in a case such as this, that would be an enormous amount of work. Clearly then, it would be far preferable to simply schedule and complete the modification hearing within a reasonable period of time.
The second problem revealed by this lengthy period of retroactivity, is that it suggests that either Kathy was actually able to live without the modified support amount during that five-year period, or was forced to make do with insufficient resources for that extended period of time. Whichever is true, it would appear that the lengthy delay was in danger of becoming evidence in the dispute.
As discussed above, one of the pillars of our spousal support law is the goal that each party should become self-supporting within a reasonable period of time. Although Kathy argues she was not able to support herself at quite the same standard the parties had enjoyed during their marriage – when they both benefited from their shared earning abilities – that would not necessarily entitle her to be supported by Michael. In almost every case, when a couple separates to different households, neither will be able to live at quite the “marital standard.”
This reality was noted by the Supreme Court in Morrison, supra, when it explained why the trial court had not abused its discretion in awarding an amount of support which did not allow the wife to achieve the parties’ former standard of living: “The husband’s and wife’s incomes, which were sufficient to cover their expenses when they were living together, are not sufficient to sustain the expenses of two separate households. Under these circumstances, the trial court was unable to provide fully for the financial needs of both parties.” (Morrison, supra, 20 Cal.3d at p. 455.)
Further, the fact that the parties’ 16-year marriage qualifies as one of long duration, does not, in and of itself, excuse Kathy from the goal of self-support. She was fairly young (43 or 44) when the marriage ended, had maintained full-time employment throughout, and continued to possess “fine marketable skills as an accounting manager/controller in the construction industry.” She didn’t make nearly the income that Michael did, but that factor alone should not qualify her to a share of his higher earning power forever.
In addition, section 4322 provides: “In an original or modification proceeding, where there are no children, and a party has or acquires a separate estate, including income from employment, sufficient for the party’s proper support, no support shall be ordered or continued against the other party.” Here, the parties did have a son, but he had reached majority before Kathy’s modification request was heard. Thus, even assuming the court did have proper jurisdiction to consider an award of support under section 4320, it would have been required to consider whether Kathy was sufficiently able to provide for her own support, and if so, to deny her any award. (See In re Marriage of Terry (2000) 80 Cal.App.4th 921.)
Thus, in this case, the glacial pace at which Kathy’s support modification request was adjudicated began to look like evidence relevant to the issue of whether she actually needed support, let alone an increase in the level, to meet her reasonable needs. That appearance might be accurate, or it might work a disservice to Kathy, who may have been struggling mightily the entire time – we cannot say which. But either way, the very existence of the delay becomes an additional complicating factor in a matter which appears to have suffered from too many complications as it is. That should not be allowed to happen.
And finally, it should go without saying that substantial delays cost both the parties and the court significantly more than an efficient proceeding would have entailed. When six months or a year passes between trial sessions, both counsel and the court must take the time to relearn the information already learned at or in preparation for the prior session. And both counsel and the court may forget important matters – perhaps even ones as important as a stipulated order which governed permanent support. This imposes additional costs and burdens on both the parties and the system.
We do not purport to tell any trial judge how to schedule his/her cases. But a scheduling system that results in a morass like this one has to be re-examined. At some point the bench officer has to take the bull by the horns, requiring the parties to provide three to five days to finish the matter once and for all, and tie them to their chairs until they do. Otherwise, delay turns into grievance.
IV
Michael next argues the court abused its discretion in ordering him to (1) pay Kathy attorney fees ($75,000) and costs ($8,000) totaling $83,000, at a rate of $2,000 per month; and (2) pay attorney fees of $21,500 to Kathy’s former counsel, at a rate of $1,000 per month. Michael argues that fee awards must be based upon a determination he is reasonably likely to be able to pay (§ 270), and the court made no such finding here.
Although we might normally infer such a finding, we cannot do so in this case, as the entirety of the court’s judgment suggests otherwise. First, as noted above, the judgment specifies that the court did not consider the factor of assets and obligations in determining the award of spousal support, despite the statutory requirement that it do so. Because the court is required to consider the same spousal support factors in making a fee award, we cannot reconcile its express refusal to do so in connection with the support award, with the usual presumption that it properly considered them in connection with the fee issue.
Section 2030, subdivision (b), requires the court to determine whether an award of attorney fees is “just and reasonable” by “tak[ing] into consideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party’s case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in Section 4320.”
Moreover, the only findings contained in the judgment which do relate to Michael’s assets and liabilities at the time of judgment provide no basis for us to infer that he would be any more able than Kathy to pay the fees awarded. Michael was awarded the parties’ former marital residence, which “at the time of trial” was valued at $542,000 with a mortgage of roughly $489,000. He was ordered to pay Kathy one-half of that net equity, or approximately $27,000. And because Michael had refinanced the property (on more than one occasion) during the lengthy pendency of the dissolution, he was also ordered to pay Kathy one-half the proceeds of those refinancings – a total of approximately $73,000.
And finally, the court had ordered, as part of its judgment, that Michael must pay Kathy $2,000 per month in spousal support, retroactive for a period in excess of five years. Because the judgment is unclear as to whether Michael had actually been paying Kathy $1,000 per month in spousal support during that retroactive period, the effect of the order is that Michael owed Kathy an additional lump sum of back spousal support, in excess of either $60,000 or $120,000 as of the date of the judgment. This means that without even considering the $2,000 per month in spousal support Michael was ordered to pay prospectively, the judgment rendered him indebted to Kathy in a lump sum exceeding either $160,000 or $220,000.
The court made no finding that Michael had any substantial bank accounts from which he might draw such funds, nor any other assets which he might be able to liquidate as a means of satisfying that lump sum payment obligation; to the contrary, its refusal to consider Michael’s assets and liabilities as a basis for determining spousal support, combined with its express determination that Michael’s earlier refinancing of the marital home had been for the purpose of “sustaining his lifestyle,” suggests it did not believe he had such resources.
Consequently, the court’s judgment suggests Michael was left with assets consisting of a home in which he had roughly $54,000 in equity, balanced against a debt to Kathy of approximately $160,000 to $220,000. The court also found that Michael’s gross earnings were $13,000 per month in 2007, down from $26,000 per month in 2004. Out of that $13,000, he was ordered to pay Kathy $2,000 per month, leaving him with gross income of $11,000 per month. Not net income, gross.
Presumably, Michael also has his own attorney fees to pay, in addition to his substantial ($4,100 per month) mortgage and other living expenses. Based upon all of that information, it would be difficult to infer that Michael would have the ability to pay an additional $83,000 in attorney fees and costs to Kathy, even at the rate of $2,000 per month, plus an additional $21,500 in fees to Kathy’s former attorney, at a rate of $1,000 per month. Doing so would require him to devote $3,000 per month of net income for nearly two years, until the attorney is paid off, and then $2,000 per month for another two or three years, until Kathy is paid off. Yet that is what the court ordered he do.
By contrast, if we assume Michael does have sufficient resources to actually pay Kathy the lump sum amounts ordered in the judgment, she ends up with either $160,000 or $220,000 in cash, plus gross income of $8,000 per month (including her $2,000 per month in spousal support).
Kathy suggests the fee awards should be upheld because the trial court has “broad discretion” to award fees as a sanction under section 271. But the court did not base its fee award on section 271, and thus we cannot uphold it based upon any inference that the trial court had intended to punish Michael for perceived obstreperousness. To the contrary, the court specifically based its fee awards on sections 2030, 2032 and 270, thus making it clear the awards were simply a matter of assessing which party could more equitably bear that expense. The orders consequently cannot be upheld as a sanction.
Section 2030, subdivision (a)(1) simply states the basic policy that “In a proceeding for dissolution of marriage, nullity of marriage, or legal separation of the parties, and in any proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal representation to preserve each party’s rights by ordering, if necessary based on the income and needs assessments, one party, except a governmental entity, to pay to the other party, or to the other party’s attorney, whatever amount is reasonably necessary for attorney’s fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding.” Section 2032, subdivision (a) then implements that policy, by giving the court the authority to “make an award of attorney’s fees and costs under Section 2030 or 2031 where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties.” Section 270 emphasizes the equitable nature of the assessment, by requiring that “[i]f a court orders a party to pay attorney’s fees or costs under this code, the court shall first determine that the party has or is reasonably likely to have the ability to pay.”
DISPOSITION
The judgment is reversed, and the case remanded to the trial court with directions to: (1) order spousal support in compliance with the 2002 stipulation and order; and (2) reconsider the orders that Michael pay portions of Kathy’s attorney fees and costs, and pay additional fees to her former counsel. The parties shall bear their own costs on appeal.
WE CONCUR, ARONSON, J., FYBEL, J.