Opinion
B321147
06-29-2023
In re Marriage of EMAN and NAGI SOUS. v. EMAN SOUS, Respondent. NAGI SOUS, Appellant,
John L. Dodd & Associates, John L. Dodd; and Warren Chao for Appellant.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BD567390, Doreen B. Boxer, Commissioner. Affirmed.
John L. Dodd & Associates, John L. Dodd; and Warren Chao for Appellant.
No appearance for Respondent.
HEIDEL, J. [*]
I. FACTUAL AND PROCEDURAL BACKGROUND
Nagi Sous brought a request for order to modify a temporary spousal support order. The court granted the request to modify but denied Nagi's request that the court impute income to his wife or apply the modification retroactively. We find that substantial evidence supports the court's findings and that the court did not abuse its discretion. We accordingly affirm.
A. The Request for Order to Modify Spousal Support
Eman and Nagi Sous were married on April 26, 1988. On July 11, 2012, after more than 24 years of marriage Eman filed a petition for legal separation. Around 2013 the court ordered Nagi to pay Eman temporary guideline spousal support of $15,000 per month.
We refer to the parties by their first names only, for the sake of clarity and brevity.
The original temporary support order was not included in the Appellant's appendix. In his brief, Nagi states that the court ordered him to pay $15,000 per month effective September 4, 2012. In its statement of decision, the court stated the original order was entered April 13, 2013. Whatever the case, there appears to be no dispute that initial order required Nagi to pay Eman $15,000 per month.
On October 28, 2019, Nagi filed a request for order (RFO) seeking to modify the temporary spousal support order. Nagi asserted that a modification was appropriate based on a change in circumstances that occurred when a court in an unrelated case ordered him to pay monthly child support of $7,520 in support of two minor children from a different relationship. Nagi asked the court to impute minimum income to Eman and to order a vocational examination, stating that she had not worked since the 2013 order was entered. Eman opposed the request for modification.
B. Hearing on the Request For Order
After a lengthy delay, the matter came before the court for hearing on December 21, 2021. At the outset of the hearing, Nagi's counsel identified two contested issues relevant to this appeal. First, he sought an order imputing income to Eman. Second, he asked that the court make any modification of the support order retroactive.
The RFO was continued at least five times before the December 2021 hearing. The reasons for the delay were the subject of some disagreement at the trial court, with both sides arguing that the other side was primarily responsible, and both sides also arguing that the reason for the delay supported their request for or against retroactivity of the modified order.
i. Testimony of the Vocational Expert
Nagi called a vocational expert to testify about Eman's ability and opportunity to work. The expert testified that he had met with Eman, discussed her skills and abilities, and analyzed available employment opportunities. He stated that Eman was "positive, professional" and had qualifications that included "a high school equivalency diploma, U.S. citizenship, and [that she was] bilingual in Arabic and English." She had attended secretarial school where she had learned typing, shorthand and filing. Based on his analysis, the expert placed her earning capacity "between $27,000 and $32,000 a year."
On cross examination, the expert testified that he had also considered Eman's "medical status" in forming his conclusions. Nagi's counsel objected to the expert testifying as to his understanding of Eman's medical condition because the expert's knowledge was based on a review of medical records that had been provided to him by Eman, and not admitted into evidence. After an exchange between counsel, the court, and the witness, the expert clarified that he had identified potential jobs that he believed Eman would "be a good prospect" for "when [she] is released from medical restrictions and is capable of working." He elaborated that "when she is void of medical restrictions, when she is capable of or deemed capable of seeking employment, these are the jobs that she would be best suited for, in my opinion." He did not testify about the nature of Eman's medical condition.
The court also admitted the expert's report into evidence. The report reiterated much of the expert testimony and included the statement that "[b]ased on [Eman's] limited work experience, education and lack of computer skills, the research conducted and my extensive knowledge of the southern California labor market, it is my opinion that [Eman's] best employment opportunity once released from medical restrictions is to seek sedentary full time or at minimum, part-time employment . . ." (Emphasis in original.)
ii. Eman's Testimony
Eman testified that she was 61 years old and had not worked in 33 years. Her last job had been with the coroner's office for seven months. She stated that she had back problems resulting from a car accident in 2008 and that she needed surgery on her spine. She was not able to identify the name of her condition but said that it was in her paperwork. She explained that she had received "injections in the back of the spine" but that the "procedure did not help at all." She had tried acupuncture and that "didn't work." She also did "physical therapy, and that was a lot, painful." She stated that her condition affected her on a day-to-day basis because "the pain travels all the way down into [her] leg.... I can't pick up some things. Like, I have difficulty in carrying things." She had pain in both wrists, and had undergone surgery of her right wrist for what she thought might be "carpal tunnel" although it "didn't help." She also took medication for depression and anxiety.
iii. Closing Arguments
At the close of testimony, the court heard arguments from both sides. Nagi's counsel argued that the spousal support Eman had been receiving since 2013 was almost $5,000 above her estimated monthly expenses, which suggested that she should have savings to repay any overpayment if the court made the order retroactive. He also argued that Eman had been on notice of the request to modify spousal support since 2019 and had "done nothing to mitigate the situation."
Eman's counsel argued that at the time the spousal support order was made, the support was taxable, so she did not receive a $5,000 windfall above her stated expenses. He argued that to make a modification of support retroactive would be "absolutely burdensome on her" because "she has nothing at this point."
During the argument, the court engaged in a colloquy with Eman's counsel about his argument that Eman was unable to work. In response to counsel's argument, the court stated "I have no evidence. She doesn't even know the name of the issue she has with her back. She's had the issue since 2008. I'm not sure she's taken responsible measures to address that. I'm also not sure that that issue would prevent her from working; right? There are these other jobs that don't require her to type or, you know, are rather sedentary so she doesn't have to move around that much. I understand also that she claims that there's some restrictions to her movements, but none of that has been explained to me. I didn't hear any explanation of what these restrictions are . . . [¶]. . . [¶] I don't have the evidence."
At the end of the hearing, the court ordered the parties to file briefs summarizing the evidence. The court also stated that it was "cognizant of the retroactivity, which is a tremendous amount of money" noting that was something "we . . . need to deal with, too."
iv. Closing Briefs
Nagi filed a brief and argued that the court should impute to Eman $32,000 in annual income based on the expert report and testimony which concluded that Eman was qualified for "numerous positions." He argued that the modification of spousal support should be retroactive because he had made several efforts to settle the matter and counsel had declined to do so, which he called part of her "strategy." Nagi also argued that retroactivity was appropriate because Eman's counsel had delayed the proceedings by asking the court to order completion of unnecessary forms and made meritless objections. He asserted that any overpayment owed by Eman could be offset by the "community property and reimbursements" that may be owed to her at the time of trial. He further argued that he believed that Eman had "significant savings" resulting from the overpayment of spousal support.
Eman's counsel argued that if the court ordered her to find work, she would need to be given additional time because the vocational expert had failed to take into consideration her "current work restrictions" among other things. She opposed any retroactive modification of the support order, citing the court's broad discretion, and urged the court to consider the equities. Eman also argued that she had paid taxes on past support that she had received, a fact that would tend to undermine Nagi's argument that she had been receiving more support than she needed and was thus able to repay any overpayment retroactively.
C. The Trial Court's Statement of Decision
On February 3, 2022, the court issued a written ruling granting the modification but declining to impute income to Eman or make the order retroactive. Regarding imputation of income to Eman, the court found that Nagi had failed to sustain the burden of proof. The court stated that although Nagi had demonstrated that there were opportunities for work, he had failed to prove that Eman had the ability to work. The court noted that although petitioner's testimony about her medical limitations were "vague, there was no evidence presented . . . that undermined it."
The court also denied Nagi's request for retroactivity. The court explained that its decision was based on its "analysis of the supported spouse's current needs measured against the supporting spouse's ability to pay." Specifically, the court found that there was insufficient evidence to support Nagi's claim that Eman had substantial assets that would enable her to repay an overpayment. Additionally, the court noted that there had been significant delays caused by COVID and the fact that the original vocational expert had become unavailable. The court also found that Nagi had failed to take into account the spousal support he owed Eman when he entered into the stipulation for child support in his other case.
The court accordingly granted the request to modify spousal support and ordered Nagi to pay $11,682 monthly commencing February 1, 2022.
D. New Trial Motion and Hearing
Nagi filed a motion for new trial. On April 15, 2022, the court held a hearing on the motion. Pertinent to this appeal, the court addressed Nagi's arguments that the court had erred when it found that he had failed to sustain the burden of proof for imputing income, and abused its discretion when it denied his request for retroactivity. Regarding the imputation of income issue, the court noted that the vocational examiner had conditioned Eman's ability to work upon Eman "getting her medical restrictions removed." The court explained, "[Eman is] not employable according to your expert." The court also considered Nagi's arguments about retroactivity and stated, "I disagree with your points, and I'm going to stick with the decision on retroactivity." The court denied the motion for new trial but set a further hearing to correct mistakes in the court's calculation of support. Nagi filed a timely notice of appeal.
On May 26, 2022, the court held a hearing to address technical errors in the Dissomaster inputs and to recalculate spousal support. The court and counsel agreed that the corrections would be adopted in an order after hearing so as not to "chang[e] the court's decision based on the fact that we are dealing with an appeal at this point."
DISCUSSION
On appeal, Nagi challenges the court's order denying his request to impute income to Eman, arguing that the court improperly shifted the burden to him to show that Eman was free of a medical condition that prevented her from working. He also argues that the court abused its discretion when it denied his request to retroactively modify the spousal support order.
A. Imputation of Income
We review temporary spousal support orders under the abuse of discretion standard. (In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1327.) Generally, temporary spousal support may be ordered in" 'any amount'" based on the party's need and the other party's ability to pay. (Ibid.)
In a proceeding to modify spousal support, a payor spouse who seeks to impute income to a payee spouse bears the burden of proving that the payee spouse "has the ability and opportunity to earn that imputed income." (In re Marriage of Bardzik (2008) 165 Cal.App.4th 1291, 1294.) "[A]bility to work" includes "such factors as age, occupation, skills, education, health, background, work experience and qualifications." (In re Marriage of Regnery (1989) 214 Cal.App.3d 1367, 1372 (Regnery).) On appeal, we consider whether the court's factual determinations are supported by substantial evidence and whether the court acted reasonably in exercising its discretion. (In re Marriage of Alter (2009) 171 Cal.App.4th 718, 730.)
Nagi argues that the court erred when it determined that he failed to meet his burden of proving Eman's ability to work. He contends he satisfied the burden through the "uncontested and unimpeached" testimony of the vocational expert, who testified "that Eman could earn $27,040 to $32,000 annually, as a receptionist, office assistant, sales associate, or similar 'sedentary' position." He maintains that after making this showing, the burden shifted to Eman to refute the expert's testimony and show that she did not have the ability to work.
As a threshold matter, the expert's testimony and report were not as straightforward as Nagi suggests. Although the expert identified several jobs that Eman might be able to perform, he also noted that "[i]t can be anticipated that it will take a longer than average job search for Ms. Sous to obtain employment and that she will initially earn at the lower end of the salary range listed above due to her limitations as noted above. As indicated above, her age, lack of computer skills and lack of work experience will make it very difficult for her to secure employment." (Emphasis omitted.)
Moreover, Nagi fails to acknowledge that his expert's conclusion that Eman could obtain certain jobs was predicated on her ability "to work after being released from medical restrictions," a conclusion he repeated in his written report and in his testimony. Indeed, when pressed by counsel on crossexamination, the expert explained that he had identified jobs for which Eman would "be a good prospect" "when [she] is released from medical restrictions and is capable of working." He further elaborated that "when she is void of medical restrictions, when she is capable of or deemed capable of seeking employment, these are the jobs that she would be best suited for, in my opinion." Although the expert did not testify to the nature of Eman's condition, his conclusions presuppose that one existed. That was corroborated by Eman's own testimony that she suffered from back and wrist problems that caused day-to day pain and interfered with her ability to drive and carry things. That testimony was largely unchallenged by Nagi. Substantial evidence accordingly supported the court's finding that Nagi failed to prove Eman had the ability to work.
Nagi argues, however, that once he established that Eman possessed the qualifications to hold certain jobs, he satisfied the burden of demonstrating her "ability to work" and the burden shifted to Eman to demonstrate whether a health issue prevented her from working. Nagi cites In re Marriage of LaBass &Munsee (1997) 56 Cal.App.4th 1331, 1339, in support of his position. LaBass held that a party seeking to impute income must establish the other party's ability and opportunity to work, but they do not need to show that the other party "would have been hired." (Ibid.) Rather, at that point the burden shifts to the other party to show that "despite reasonable efforts, [they] could not secure employment," for example by showing that they conducted a diligent job search. (Ibid.) LaBass did not hold, as Nagi suggests, that the party to whom income would be imputed has the burden of proving they are unable to work in the first instance.
Nagi's argument that the burden shifted to Eman is premised on an unduly narrow reading of "ability." Nagi essentially argues that "ability" is equivalent to "qualifications," and that once he demonstrated Eman was qualified for certain jobs, it was Eman's burden to prove she could not secure employment. But "ability" includes many factors including "age, occupation, skills, education, health, background, work experience and qualifications." (Regnery, supra, 214 Cal.App.3d at p. 1372.) The court properly considered evidence of Eman's medical condition in determining whether Nagi had established Eman's ability to work.
Nagi contends that even if he bore the burden of proving Eman was healthy enough to work, the court should have reallocated the burden of proof to her because that was a fact "uniquely within her knowledge and that of any treating physician." Nagi cites to no case in which any court has held it is appropriate to reallocate the burden of proof for imputing income in this manner. Moreover, Nagi had ample opportunity to seek information and probe the scope of Eman's purported health issues through discovery and cross-examination, but apparently chose not to do so.
Last, Nagi points to the colloquy between Eman's counsel and the court at the close of evidence in which the court stated that it did not "have any evidence" that Eman had a medical condition that prevented her from working. The court commented that Eman did not "even know the name of the issue she has with her back" and was "not sure she had taken responsible measures to address [it.]" The court's statements were not findings, but simply questions and comments that it put to Eman's counsel. Whatever the court's view of the evidence at that moment, by the time it issued its statement of decision, it had apparently reevaluated the totality of the evidence and the applicable burden of proof. That was not error.
B. The Denial of Retroactive Modification
Nagi argues that the court's denial of his request to make the modification of the spousal support order retroactive to the date that he filed the RFO was unsupported by substantial evidence and an abuse of discretion. We disagree.
A court modifying a spousal support order can make the modification "retroactive to the date that the notice of motion or order to show cause for modification was served." (In re Marriage of Cryer (2011) 198 Cal.App.4th 1039, 1051-1052.) An order denying a retroactive modification is reviewed for an abuse of discretion. (Id. at p.1052.)
Nagi cites In re Marriage of Diamond (2021) 72 Cal.App.5th 595, 602 as the applicable standard in determining the scope of a trial court's discretion to modify a spousal support order. Diamond addressed modification in the context of a permanent spousal support order and the requirement that the court consider each applicable factor in Family Code section 4320. Because this case concerns a temporary spousal support order, section 4320 does not apply.
The court found that there was insufficient proof to support Nagi's contention that Eman had "assets substantial enough to pay any court order relating to retroactivity." Nagi argues that it was improper to consider Eman's current assets because that assessment failed to consider the assets that Eman would receive as her share of the parties' community property distribution. He also argues that Eman should have had sufficient assets to make a repayment, because she had been receiving support above her stated needs for many years. As to the former, Nagi cites nothing in the record that shows what Eman's share of the parties' community property might be. Nor does he address why it would be equitable to allocate her community property share in the manner he suggests. Regarding Nagi's claim that Eman had long received support above her stated needs of $9,000, that point was contested at the hearing. Eman argued that she paid taxes on the support payments, and the net amount of support did not exceed her needs. Moreover, Eman's income and expense declaration indicated that she had total assets of only $34,000. The court did not err when it found that the evidence did not support Nagi's claim that Eman had enough money to repay him if the order was applied retroactively.
Nagi also argues that the court's statement that Nagi "failed to consider his existing obligations to Petitioner when he" stipulated to child support in his other case was unsupported by evidence. That is not so. In its ruling the court referenced the Dissomaster Report from Nagi's child support case which was filed as part of the RFO. The report shows that Nagi failed to include an input for "SS [Spousal Support] paid other marriage."
Inclusion of the spousal support owed to Eman would have reduced that amount of income available for child support in the other case, resulting in a lower guideline child support order. This in turn would have reduced the financial burden on Nagi and mitigated against the need for a retroactive order.
Nagi further contends that the court erroneously concluded that the delay in resolving the RFO was "in significant part because of the COVID-19 pandemic and because Respondent's expert witness became unavailable and needed to be replaced." Nagi argues that other delays were caused by Eman and her counsel. While Eman and her attorney may have delayed the proceeding at times, the record shows much of the delay was unrelated to Eman. The replacement of the vocational expert resulted in a delay of at least five months. Other delays were caused by the court's busy calendar, or logistical problems such as counsel's car trouble. Under the circumstances it was not an abuse of discretion for the court to find Eman had not caused the bulk of the delay and decline to order retroactivity on that basis.
We also disagree that the court violated Nagi's right to due process when it relied, in part, on Nagi's failure to establish Eman's lack of ability to pay as a ground for denying retroactivity. Nagi maintains that the court's finding was a "surprise" because Eman had not argued inability to pay in her trial brief. But as discussed above, Nagi raised Eman's ability to repay him (either from a future community property disbursement or from savings he believed she should have established from years of receiving an overpayment) at the hearing. Eman disputed having savings. Indeed Eman's counsel argued that "to make this retroactive, your honor, would be so absolutely burdensome on her. I mean, she has nothing at this point." It was thus neither a surprise nor a violation of due process for the court to consider the evidence and argument regarding Eman's ability to pay in denying Nagi's request for retroactivity.
DISPOSITION
The order is affirmed. Because Respondent did not participate in the appeal, no costs are awarded.
We concur: LAVIN, Acting P. J., EGERTON, J.
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.