Opinion
NOT TO BE PUBLISHED.
APPEAL from a judgment of the Superior Court of Los Angeles County, Michael P. Linfield, Judge, Los Angeles County Super. Ct. No. BD 274107.
Moffitt, Weagant & Loo, Lance M. Weagant, and John Loo for Appellant.
Law Offices of Jeffrey W. Doeringer and Jeffrey W. Doeringer for Respondent.
FLIER, J.
In this marriage dissolution case, Lance M. Weagant (Lance) appeals from a judgment on reserved issues, entered five years after the trial court first issued a statement of decision, and from a denial of his postjudgment request for termination of open-ended spousal support for his ex-spouse, Ella M. Snow (Ella). Finding no error, we affirm.
As is customary in family law proceedings, we refer to the parties by their first names for purposes of clarity. (Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.)
RELEVANT FACTS AND PROCEDURAL HISTORY
Lance and Ella married on August 6, 1988. They permanently separated nine years six months later, on February 9, 1998. At the time of their separation, Lance was a partner in a law firm and Ella was unemployed, having previously worked as a legal or executive secretary from 1973 to 1995, when she voluntarily left employment. They had no children. Lance filed a petition for dissolution of marriage in February 1998, and a status only dissolution was entered in March 1999. Following some interim orders, the trial court issued a memorandum of tentative decision on the reserved issues on June 22, 2000. The tentative decision incorporated an open-ended monthly spousal support award of $1,500 for Ella. The trial court directed Lance to “prepare the further judgment on reserved issues not later than July 5, 2000, ” and to “submit same to the [c]ourt for execution and filing.”
The memorandum of tentative decision stated: “[Lance] shall pay to [Ella] as spousal support, the sum of $1,500.00 per month, payable one-half on the first and one-half on the fifteenth day of each month, commencing on July 1, 2000 and continuing until further order of Court, until the death of [Lance] or [Ella], [or] until the remarriage of [Ella], whichever first occurs.”
After requests for a statement of decision, objections and proposals for inclusions by the parties, the trial court issued a statement of decision on October 6, 2000. The court made various changes, additions and deletions to the tentative decision, but the statement of decision retained the open-ended spousal support award to Ella of $1,500 per month, the payments to commence as of July 1, 2000. The court found the marriage was one of “long duration.” (See Fam. Code, § 4336.) It further found Lance and Ella had “an upper middle class standard of living, ” more than $10,500 per month, during the marriage and that the ordered spousal support did not meet Ella’s reasonable expenses as determined by the parties’ standard of living. The court also found that Lance’s average gross monthly income during the year prior to trial was about $5,300. The court determined Ella had the present ability to earn $3,000 per month towards her reasonable monthly expenses of $4,500, she did not need additional retraining to find employment as a legal secretary and the imputed income plus the $1,500 monthly spousal support would equal Ella’s reasonable monthly expenses. It reasoned that Ella could also use income from separate assets and community assets awarded her to maintain her standard of living.
Family Code section 4336 provides, in pertinent part: “(a) Except on written agreement of the parties to the contrary or a court order terminating spousal support, the court retains jurisdiction indefinitely in a proceeding for dissolution of marriage or for legal separation of the parties where the marriage is of long duration. [¶] (b) For the purpose of retaining jurisdiction, there is a presumption affecting the burden of producing evidence that a marriage of 10 years or more, from the date of marriage to the date of separation, is a marriage of long duration. However, the court may consider periods of separation during the marriage in determining whether the marriage is in fact of long duration. Nothing in this subdivision precludes a court from determining that a marriage of less than 10 years is a marriage of long duration. [¶] (c) Nothing in this section limits the court’s discretion to terminate spousal support in later proceedings on a showing of changed circumstances. . . .” All further statutory references are to the Family Code.
The court found Lance’s interest in a retirement plan of Ella’s at Gibson, Dunn & Crutcher was worth approximately $16,800, but it struck a provision that would have required Ella to make a payment to Lance in that amount.
Despite the court’s prior direction, Lance failed to submit a proposed judgment on reserved issues to the court, nor did Ella in default of Lance do so. The court therefore did not enter a judgment on reserved issues at the time of trial.
Five years later, on August 18, 2005, Lance filed a motion for clarification and amendment of the statement of decision or, in the alternative, objections to the statement of decision. Lance alleged no judgment on reserved issues had been entered following the court’s October 2000 statement of decision as the parties sporadically had been attempting to reach settlement or clarification of the reserved issues. Lance declared he and Ella had informally agreed she could continue to live in the parties’ condominium in lieu of payment of the $1,500 monthly spousal support until Ella vacated the condominium. Ella opposed Lance’s motion and filed her own motion to clarify or amend the statement of decision. She alleged and declared that Lance had made no spousal support payments over the last five years. She denied that the parties had any agreement for her to forego spousal support while she remained in the parties’ condominium. She requested that the court revalue the condominium, alleging it had significantly appreciated in value due to the booming Southern California real estate market.
The trial court heard Lance’s motion for clarification on October 12, 2005. The court reaffirmed its order awarding Ella spousal support and denied Lance’s request for cash or a like payment for Lance’s interest in Ella’s Gibson, Dunn & Crutcher retirement account. The court made certain changes and interlineations to the proposed judgment and amended statement of decision after further hearings on November 1, 2005. However, it reconfirmed its denial of an award of a payment to Lance for his share of Ella’s Gibson, Dunn & Crutcher retirement fund, noting “that [the] amount was taken care of in the award to [Ella].” The court then entered a minute order denying Lance’s request for an equalization payment for his interest in Ella’s Gibson, Dunn & Crutcher retirement plan.
The court denied Ella’s application for an order to show cause to reopen evidence concerning the valuation of the parties’ condominium. Ella did not appeal the denial of her application.
No notice of entry of this order appears in the record before us.
The court signed an amended and corrected statement of decision and entered a judgment on reserved issues on November 9, 2005. The judgment directed Lance to pay Ella $97,500 on November 1, 2005, for the unpaid spousal support for the period July 1, 2000, to November 30, 2005.
The judgment on reserved issues states: “Although the [a]mended and [c]orrected [s]tatement of [d]ecision is being entered into as of November 1, 2005, all findings of fact and orders of the [c]ourt contained therein regarding spousal support related to the marital standard of living of the parties as of June 22, 2000; [Lance’s] earning capacity as of June 22, 2000; [Ella’s] earning capacity as of June 22, 2000; and [Lance’s] and [Ella’s] station in life as of June 22, 2000. The [a]mended and [c]orrected [s]tatement of [d]ecision shall [be] deemed to retroactively modify the [s]tatement of [d]ecision dated October 6, 2000, and shall not be interpreted to preclude an [o]rder to [s]how [c]ause [r]e [t]ermination of [s]pousal [s]upport if brought by [Lance] or an [o]rder to [s]how [c]ause [r]e [m]odification of [s]pousal [s]upport if brought by [Ella] based on a change of circumstances that has occurred after June 22, 2000.”
Several weeks later, Lance filed an application for an order to show cause seeking termination of the $1,500 monthly spousal support and of the court’s jurisdiction over spousal support. He based his application on a lack of change of circumstances, specifically Ella’s failure to seek employment since January 1995. Lance declared he had paid Ella $97,500 in spousal support from July 1, 2000, to November 30, 2005, and was current on support payments. Ella opposed the request for termination, asserting Lance had not filed an income and expense declaration and had not alleged a change in circumstances. Ella declared she was 53 years old, had been out of the work force for years and had no college education. She stated she was not employed, had no income from employment and had suffered from several serious illnesses and medical conditions since the trial restricting her ability to work. Ella alleged that Lance had paid the support obligation and equalizing community property payment ordered by the court only within the past 30 days.
Lance had proffered to Ella at the hearing of November 1, 2005, a check for over $204,000: $97,500 for past due spousal support and about $107,000 in equalization payments.
The trial court denied Lance’s request for an order to terminate spousal support and to terminate the court’s jurisdiction over spousal support, finding “[t]here’s been no change in circumstance.”
Lance filed a notice of appeal challenging specified portions of the judgment on reserved issues, namely: (1) the portion of the judgment ruling the marriage was a marriage of “long duration, ” and (2) the award to Ella of Lance’s alleged one-half community property interest in Ella’s Gibson, Dunn & Crutcher retirement plan without an equalization award to Lance of other assets or payment from Ella. He also appealed the denial of his application for an order terminating spousal support to Ella.
We reject Ella’s contentions challenging the appealability of the second issue. The court’s order of November 1, 2005, denying Lance’s request for an award of approximately $16,800 from Ella’s retirement account was not an appealable order. It was interlocutory, did not finally determine the right of the parties in relation to that matter and did not direct the payment of money or performance of an act. (In re Marriage of Skelley (1976) 18 Cal.3d 365, 368.) Until the court entered the judgment on reserved issues dividing community property and ordering equalization payments, if any, there was no final determination of Lance’s and Ella’s rights in this regard.
CONTENTIONS
Lance’s contentions boil down to the following:
(1) The trial court abused its discretion in finding the marriage to be one of “long duration.”
(2) The trial court abused its discretion in denying Lance’s request to terminate spousal support and to terminate the court’s jurisdiction over spousal support.
(3) The trial court erred in not awarding Lance an equalization payment of approximately $16,800 for Lance’s interest in Ella’s retirement account since Ella purportedly had not objected to language awarding Lance an offset or credit for his interest.
We disagree.
STANDARD OF REVIEW
It is within the trial court’s broad discretion to fix the amount and duration of spousal support. (In re Marriage of Baker (1992) 3 Cal.App.4th 491, 496; see also In re Marriage of Morrison (1978) 20 Cal.3d 437, 454.) In awarding spousal support, the trial court must consider the mandatory guidelines of section 4320. Once it does so, the court’s decision will not be reversed on appeal absent an abuse of that discretion. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 283.) Modification of a spousal support order also is a matter for the exercise of the trial court’s sound discretion, based upon a showing of a material change of circumstances since the last spousal support order. (In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 575; In re Marriage of Meegan (1992) 11 Cal.App.4th 156, 161; In re Marriage of Hopwood (1989) 214 Cal.App.3d 1604, 1607.) A trial court’s division of community property is also reviewed for abuse of discretion. (In re Marriage of Steinberger (2001) 91 Cal.App.4th 1449, 1459.)
DISCUSSION
1. The Trial Court Did Not Abuse Its Discretion in Finding the Marriage Was of “Long Duration”
Section 4320 establishes multiple criteria to guide a court in calculating the amount of monthly support a formerly married person might owe an ex-spouse. (In re Marriage of Cheriton, supra, 92 Cal.App.4th at pp. 303-304.) The statute’s reference point for weighing the criteria is the marital standard of living. (In re Marriage of Zywiciel (2000) 83 Cal.App.4th 1078, 1081; Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2007) ¶ 6:838, pp. 6-302.12 to 6.302.13.) The court must consider and weigh all of the circumstances listed in the statute, to the extent relevant to the case at issue. (Cheriton, supra, at pp. 303-304.) Those factors include 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 such circumstances as the marketable skills of the supported party and the job market for those skills, the needs of each party based on the standard of living established during the marriage, the duration of the marriage and the age and health of the parties. (§ 4320.) A goal that the supported party shall be self-supporting within a “reasonable period of time” is also a factor for consideration. (§ 4320, subd. (l).) The statute defines a “reasonable period of time” as generally one-half the length of the marriage, “[e]xcept in the case of a marriage of long duration as described in Section 4336.” (Ibid., italics added.)
Lance contends the trial court abused its discretion in finding the marriage was one of long duration and spousal support accordingly should have been payable only for one-half the length of the marriage, or four and three-fourths years. In support of his contention, Lance cites the following: (1) Ella had a 23-year career as a legal or executive secretary, (2) neither spouse had any children and (3) Ella did not suffer from any medical or physical condition, clinical depression or any other mental disorder preventing her from returning to her chosen career. Though these factors might have bearing on Ella’s marketable skills and her ability to engage in fulltime gainful employment, none bears upon whether the marriage was of long duration and thus whether the court erred in making an open-ended spousal support order.
In fact, the court took these elements into consideration in concluding Ella could find employment as of June 2000 and imputing to her a monthly salary of $3,000 even though she was not in fact employed. (See In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 48 [income imputed to supported spouse who regained capacity to work].)
The trial court found the marriage lasted nine and one-half years but nevertheless determined the marriage was one of long duration. The court clearly had discretion to conclude a marriage just six months shy of 10 years is one of long duration. Subdivision (b) of section 4336 declares that “[n]othing in this subdivision precludes a court from determining that a marriage of less than 10 years is a marriage of long duration.” Section 4320, subdivision (l)provides that a reasonable period of time for a supported spouse to become self-supporting generally is one-half the length of the marriage, but also states that “nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time . . . .” There is substantial evidence in the record supporting the court’s exercise of its discretion in ordering the open-ended support.
The trial court weighed and considered at length in its amended statement of decision the section 4320 factors in determining spousal support. On the evidence presented, there was no guarantee that Ella would be able to become financially independent in the near future or at all. (In re Marriage of Morrison, supra, 20 Cal.3d at pp. 452-454.) Although Ella had an exceptional career before and during part of the marriage as a legal or executive secretary, she had not worked since 1995. She had been a legal secretary for major partners at a highly respected law firm and had several favorable letters of recommendation or performance evaluations. However, Ella’s age and her long absence from the workplace during a time of technological innovation constituted major impediments to her attaining a comparable position. Even though Ella owned a computer and had some training in its use, she had never put these skills to the test in the marketplace. The court acknowledged these difficulties, noting Ella “may well have to settle for a position as a legal secretary in a secretarial pool, as opposed to a position as a secretary to a partner at a major law firm.”
Lance states he has located only three cases in which marriages of less than 10 years were considered marriages of “long duration, ” each of which he asserts is distinguishable. (In re Marriage of McTiernan & Dubrow (2005) 133 Cal.App.4th 1090, 1094 [eight and three-quarter years]; In re Marriage of Baker, supra, 3 Cal.App.4th at p. 494 [“less than 10 years’ duration”]; In re Marriage of Heistermann (1991) 234 Cal.App.3d 1195, 1197 [eight years 11 months].) We disagree. All three cases illustrate the very type of circumstances presented here, where the prospects of the supported spouse are uncertain and the spouse’s ability to become self-supporting unknown. (In re Marriage of Rosan (1972) 24 Cal.App.3d 885, 896 [“orders for changes in support to take effect in the future must be based upon reasonable inferences to be drawn from the evidence, not mere hopes or speculative expectations”].)
In McTiernan & Dubrow, we did not specifically hold the marriage was of “long duration” but reversed the trial court for limiting permanent spousal support to two years because the trial court’s expectations regarding the wife’s ability to remain adequately employed and self-supporting were tentative and untested. (In re McTiernan & Dubrow, supra, 133 Cal.App.4th at pp. 1107-1108.)
The trial court therefore did not abuse its discretion in ordering open-ended spousal support for Ella.
2. The Trial Court Did Not Abuse Its Discretion in Denying Lance’s Request To Terminate Spousal Support
“Generally, support cannot be terminated after a lengthy marriage unless the record indicates the supported spouse will be able to adequately meet his or her needs.” (In re Marriage of Bukaty (1986) 180 Cal.App.3d 143, 148, see also In re Marriage of Morrison, supra, 20 Cal.3d at p. 453.) While a court is to consider a supported spouse’s employment in setting the amount and duration of support and to encourage a supported spouse to seek employment, the court should not relieve the supporting spouse of the obligation for spousal support based on the mere hope this will induce the supported spouse to become self-supporting. (See Morrison, supra, at p. 452.) “If the record does not contain evidence of the supported spouse’s ability to meet his or her future needs, the court should not ‘burn its bridges’ and fail to retain jurisdiction.” (Id. at p. 453.)
The court originally made its determinations regarding spousal support as of June 2000. The court’s original support order placed Ella into the category of spouses for which open-ended support and continued jurisdiction were appropriate. When there is no express termination date contemplated in the original support order, the supporting spouse carries the burden of showing a change in circumstances to justify a modification order setting a termination date. (In re Marriage of Heistermann, supra, 234 Cal.App.3d at p. 1201.) A supporting spouse seeking modification must present the court with an “ ‘evidentiary yardstick, ’ ” i.e., current information showing a material change in circumstance from which the court can determine the appropriateness of a modification order. (In re Marriage of Tydlaska, supra, 114 Cal.App.4th at p. 576.) Premised on the original support order in this case, termination of support and jurisdiction could only be justified if Lance carried his burden of showing changed circumstances.
Lance argues that in making the original support order the trial judge had orally indicated, “if somebody does bring a [request for modification or request for termination], what’s happened in the last five years can be presented . . . whether there is a change of circumstance or not . . . .” The judgment on reserved issues, however, explicitly provides that “[t]he [a]mended and [c]orrected [s]tatement of [d]ecision . . . shall not be interpreted to preclude an [o]rder to [s]how [c]ause [r]e [t]ermination of [s]pousal [s]upport if brought by [Lance] . . . based on a change of circumstances that has occurred after June 22, 2000.” (Italics added.) Even under the court’s judgment on reserved issues, therefore, Lance was obligated to show a change of circumstances for modification or termination of the spousal support order.
Lance did not provide the court with evidence of any change of circumstances, claiming it was not his burden. He relied solely on argument that the passage of time justified termination of spousal support, stating, “[f]or more than ten (10) years, Ella has deliberately refused to seek re-employment commensurate with her intelligence, aptitude, skill, training, experience, and education . . . .” But the mere passage of time is not alone a sufficient basis for modification of a support order. (In re Marriage of Heistermann, supra, 234 Cal.App.3d at p. 1202.) Changed circumstances may occur with the passage of time, but “it is the change in circumstances and not the passage of time which is material.” (Ibid.) Because Lance showed no change in circumstances, the trial court did not abuse its discretion in refusing to terminate spousal support or jurisdiction.
In view of the trial court’s denial of Lance’s request to terminate spousal support, we need not address Ella’s argument that the court lacked jurisdiction to terminate its jurisdiction over spousal support while the underlying judgment was on appeal.
3. There Is No Showing of Error Regarding an Offset or Credit for Lance’s Interest in Ella’s Retirement Account
A court ordinarily must divide community property equally between ex-spouses, but may depart from an equal division to achieve substantial justice between the parties. (§ 2550; In re Marriage of Steinberger, supra, 91 Cal.App.4th at p. 1459.)
Lance in effect argues the court had no discretion but to award him an offset, equalization payment or some other financial consideration for the stipulated value of his $16,800 community property interest in Ella’s retirement account. Lance bases his argument solely on Ella’s urging in the trial court that such interest in her retirement account “should be divided in-kind or offset against other retirement accounts.” The trial court left alone the parties’ stipulation as to the amount and value of Lance’s interest in Ella’s retirement account, i.e., 38.61 percent or approximately $16,800, but deleted the portion of the proposed statement of decision that would require Ella to make a cash payment of that sum to Lance. In denying Lance’s request for an award of that sum, the court explained: “the [$]16, 000 that should have gone to [Lance] was given to [Ella], and the [$]16, 000 came from a division of a community property interest in that fund. And so I ordered [$]32, 000 of it awarded to [Ella] as her division of community property.” We interpret the trial judge’s statement to mean he had credited Ella as having received some $32,000 in community property when he divided the community property between the parties. In the further hearing on this issue, the court again explained, “I’ve indicated a couple of times that that amount was taken care of in the award to [Ella] of . . . 77 percent of her retirement fund.” The court later added, “she [Ella] was charged with that as community property.”
There is nothing in the record indicating the trial court did not offset or take into account this community property interest in arriving at the division of property held by the parties. Lance points to the entire judgment on reserved issues in support of his claim, but fails to show that the division of property could not and did not take Ella’s retirement fund into account. Our review of the record is otherwise. Lance therefore has failed to show the apportionment of property was not equitable under the circumstances of the case. (In re Marriage of Steiberger, supra, 91 Cal.App.4th at p. 1459.)
DISPOSITION
The judgment is affirmed. Respondent is to recover her costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
We concur: RUBIN, Acting P. J., BOLAND, J.