Opinion
NOT TO BE PUBLISHED
Superior Court County Ct. No. 1036107, of Santa Barbara, J. William McLafferty, Judge
Diane M. Matsinger; Brian H. Burke for Appellant.
Paul Adam Roberts; Lascher & Lascher, Wendy C. Lascher, Aris E. Karakalos for Respondent.
COFFEE, J.
Suzanne Rossi (Wife) appeals from the judgment and orders granting respondent Douglas Rossi's (Husband's) request to modify spousal support payments and denying her request for attorney's fees. Wife argues that the court lacked jurisdiction to modify the support payments; and that the court abused its discretion by modifying Wife's support payments absent any material change of circumstances, treating Wife's support as Husband's money, and characterizing part of the spousal support as "de facto adult child support." We affirm.
FACTS
After a 24-year marriage, the parties separated in 2000. Appellant filed his petition for dissolution. In May 2003, following a contested trial before Judge J. William McLafferty, the court issued findings, and judgment was entered on property and support issues. Husband, a lawyer, earned an average annual income of $376,579. Wife, a teacher, earned approximately $50,000 per year and worked nine months of the year. Wife assisted or contributed to the "attainment of [Husband's] law degree and career position with his firm." Wife's "expenses of almost $12,000 per month [included] assistance to [adult] children." Husband's expense statement included "obligations for the college expenses of [adult] children." The court explicitly stated that "there [was] no need for either parent to attend to dependent children." The marital standard of living was comfortable (and not lavish), with few family vacations during the year, without extravagant expenditures. The court ordered Husband to pay Wife monthly support of $7,000, "a reasonable support figure." Husband did not appeal from the judgment.
Prior to trial, Wife submitted a declaration explaining that her monthly expense entry of $1,000 for "children, at home and their other expenses, [was] probably low."
In his petition for termination or modification of spousal support filed in May 2005, Husband claimed his earnings had decreased (a claim he later dropped), and that Wife was "cohabitating in her home with a man [Charles Brandon Curnow] as though they [were] a married couple." Husband's declaration indicated his monthly salary was $30,210, his monthly expenses were $24,489, and his assets were $344,000 ($2,000 in deposit accounts, and $342,000 equity in real estate).
Wife's response denied the cohabitation claim. Her declaration indicated that her monthly salary was $4,288, her monthly expenses were $9,941, and her assets were approximately $428,000 ($28,000 in deposit accounts and $400,000, which appeared to be equity in real estate). Wife also disclosed that she had used some of her assets to assist the parties' adult children. Of Wife's claimed $9,941 in monthly expenses, she listed $1,100 for insurance, including that for adult children who were 25 and 23 years old in 2005, and a $300 telephone expense, with the annotation "kids' cell phones." It is not clear what portion of these expenses benefit the adult children. Another declared monthly expense ($350 for education) seems to correspond with the $349 student loan payment Wife described paying for her son. Wife sought attorney's fees incurred to defend against the request to terminate or reduce spousal support.
Wife's 2005 declaration indicated she assisted adult children by providing the following: For Daughter: $8,000 (living expenses for graduate school--two semesters (2004-2005)); $7,000 (down payment on car); $1,000 (car insurance); $2,000 (moving expenses from Boston to Michigan for graduate school); from May through August 2005, daughter lived with Wife without paying for household expenses.
Husband's reply reiterated his cohabitation claim. He also argued that Wife's expenditures for adult children should be disregarded by the court.
In March 2006, Judge McLafferty heard the motion to terminate or modify spousal support. Husband testified that his 2005 "K-1" salary was $450,000. Husband testified about his observations of Curnow at Wife's home, and questioned Wife and Curnow about her gifts and loans to Curnow. Wife and Curnow testified that he had repaid her loans to him.
Before ruling, the court expressed concern that Wife spent substantial sums for expenses of adult children: "[T]he part of this hearing . . . that concerned me the most was the fact that these children [who are] adults . . . should be on their own, and there's a lot of money going out to the children which is concerning to me. I come up with something like over $4,000 a month . . . on cell phones and paying off college loans and so forth. And I think Mr. Rossi has a right to complain about that. It's like a child support that never ends . . . ." The court found no "evidence of any cohabitation," but indicated that it would reduce the spousal support to $4,000 to "encourage the children to become self-supporting, or at least seek out their father if they need some help."
Wife's counsel sought clarification from the court: "[A]s I understand the Court's finding, . . . she is spending some of her support money on the children, which she shouldn't be doing. [¶] So . . . if she spends the same amount . . . on herself, is that a change of circumstances? [W]ould [that] warrant another hearing?" The court responded, "I don't think so. I think what I'm really saying is I think that for her, she's a teacher, she's not doing badly as far as earnings from that, but to maintain the type of lifestyle that I think that she should have, I think the $4,000 should be sufficient, and that's just for her. I think that's what she needs at this point. There's a lot of people in this courthouse that don't have $8,000 a month to live on. [¶] . . . [¶] Including some of the judges." (Italics added.)
In its June 20, 2006 order, the court referenced its 2003 statement that "'The children are adults and there is no need for either parent to attend to dependent children.'" It then stated: "Notwithstanding the Court's earlier finding regarding the support of the adult children, the Court finds that [Wife] has been supporting her adult children in the amount of $3,000 per month. The payments to the adult children are contrary to the admonition given to her when the Court made its Order for spousal support in March of 2003." It further found that Wife's "historical lifestyle needs would be met by the Court modifying spousal support consistent with this Order." The court ordered the spousal support reduced to $4,000 per month. The court denied Wife's request for attorney's fees.
DISCUSSION
Wife contends the trial court erred in modifying spousal support downward because it lacked jurisdiction to modify the order, and Husband failed to show changed circumstances. "The trial court has broad discretion to decide whether to modify a spousal support order based on a material change of circumstances." (In re Marriage of Terry (2000) 80 Cal.App.4th 921, 928.) "'"So long as the court exercised its discretion along legal lines, its decision will not be reversed on appeal if there is substantial evidence to support it."'" (In re Marriage of Biderman (1992) 5 Cal.App.4th 409, 412.) We will not reverse the order absent a clear showing of abuse. (In re Marriage of Schmir (2006) 134 Cal.App.4th 43, 47.)
In arguing that the court lacked jurisdiction to modify support, Wife stresses that Husband sought a termination or modification of support on grounds unrelated to the factor the court cited in reducing the support (Wife's expenditures for adult children). Wife asserts that the trial court could not consider any grounds except those specified in the motion in modifying the support order, because Code of Civil Procedure section 1010 requires that notices of motion state the grounds upon which they are made. Wife argues that the court may, therefore, "consider only such grounds as are specified in the motion," citing Castagnoli v. Castagnoli (1954) 124 Cal.App.2d 39, 41.
Wife's argument is not compelling because she had notice before trial that Husband claimed that she used spousal support to pay for expenses of adult children. (See Perez v. Perez (1952) 111 Cal.App.2d 827 [despite omission of grounds from notice of motion, defect cured by accompanying affidavit which adequately apprised opposing party of grounds on which motion would be made].) Husband's reply states: "[Wife] has inserted the ROSSI children . . . to show her financial need. This aspect of her Response should be viewed in the context of spousal support and not child support. If [Husband] had the $7,000 per month he pays to [Wife and Curnow], he would be able to financially assist his adult children as he sees fit. The fact that [Wife] obtains some emotional benefit by taking the money [Husband] pays to her and giving it to their children is more than ironic. [Husband] should be able to decide how his adult children are supported with his money . . . not [Wife]. As a result, the support of the adult children by [Wife] should be disregarded." (Italics added.)
Wife further argues that Husband's failure to prove a material change of circumstances deprived the court of jurisdiction to modify the spousal support order, and that it abused its disrection in doing so. We disagree. Generally, a trial court has no power to modify spousal support absent a material change of circumstances since the last order. (See, e.g., In re Marriage of Biderman, supra, 5 Cal.App.4th 409, 412-413; In re Marriage of Lautsbaugh (1999) 72 Cal.App.4th 1131, 1133-1134.) Because Wife failed to request that the trial court specify the changed circumstances in its findings or statement of decision, we invoke the doctrine of implied findings and infer the necessary findings to support the judgment. (See In re Marriage of Schmir, supra, 134 Cal.App.4th 43, 48-49.)
In this case, the record reflects that there were changed circumstances (a significant increase in the value of Wife's assets), despite the court's failure to specify them. In exercising its discretion to modify spousal support, the trial court must consider the criteria set forth in Family Code section 4320, the same criteria it considers in making the initial order. (In re Marriage of Terry, supra, 80 Cal.App.4th 921, 928.) They include "[t]he extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage" and "[t]he obligations and assets" of each party. (Fam. Code, § 4320, subd. (a) & (e).) Earning capacity may include "income that could be derived from income-producing assets as well as from work." (In re Marriage of Dacumos (1999) 76 Cal.App.4th 150, 154; see also In re Marriage of De Guigne (2002) 97 Cal.App.4th 1353, 1365 [earning capacity and income derived from inherited wealth properly considered in determining child and spousal support].) In 2003, the court awarded Wife approximately $282,000. In 2005, she declared that the value of her assets was approximately $428,000. Thus, Wife's assets increased significantly between 2003, when the court ordered spousal support of $7,000 per month, and 2006, when it modified its order. The trial court properly considered that increase in determining Wife's "obligations and assets" pursuant to Family Code section 4320, subdivisions (a) and (e).
Wife contends the trial court erred in characterizing part of the support as "de facto child support" where she did not use spousal support to pay the expenses of her adult children. This argument is based on the fact that she liquidated part of her assets to finance the adult children's expenses, instead of using spousal support to do so. The argument wrongly assumes that the court could not consider Wife's assets in evaluating her need for support. Family Code section 4320 requires the court to consider the obligations and assets of each party in evaluating spousal support. (Fam. Code, § 4320, subds. (a) & (e).)
Wife also contends that the trial court erred when it denied her request for an award of attorney's fees. We disagree. "A motion for attorney fees in a marital dissolution action is left to the sound discretion of the trial court and will not be overturned absent an abuse of that discretion." (In re Marriage of Huntington (1992) 10 Cal.App.4th 1513, 1523.) "We may overturn the trial court's award only if '"no judge could reasonably"' have made it." (In re Marriage of O'Connor (1997) 59 Cal.App.4th 877, 884, quoting In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768-769.) The court's denial of wife's request for attorney's fees is not such a ruling.
The judgment is affirmed. Each party shall bear their own costs.
We concur: GILBERT, P.J., YEGAN, J.
For Son: $300 a month rent for apartment until he moved into Wife's home and did not pay for household expenses; she estimates the rent payment has been replaced by various "costs of having [son] live" with her. Wife pays son's $349 monthly school loan payment.