Opinion
NOT TO BE PUBLISHED
James W. Brown, Judge, Superior Court County No. 219708 of Santa Barbar
Daniel A. Murphy for Appellant.
Law Office of Vanessa Kirker and Vanessa Kirker for Respondent.
PERREN, J.
Allen and Sheree Williams ended their marriage in 1999. The marital settlement agreement included a determination of Sheree's financial needs coupled with an order that Allen pay $4,200 per month in spousal support "until [Sheree's] death, [Allen's] death, [Sheree's] remarriage, or further Order of the Court," as a component of meeting that need. Allen appeals from the order denying his motion to decrease or terminate spousal support. He contends that the trial court failed to give due consideration to Sheree's failure to become self-sufficient and that there was not substantial evidence of an agreement to a set standard of living to which he would contribute. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Sheree and Allen Williams were married for 18 years before they separated in November 1998. The marriage was dissolved in May 1999. Sheree was 39 years old at the time of the separation and had a high school education. During the marriage, Sheree raised their two sons and helped Allen with his business. She also operated a baton-twirling and dance instruction business, but it was not profitable.
As is conventional in family law matters and not out of disrespect, we refer to the parties by their first names.
The parties stipulated to spousal support as follows: "Commencing effective May 1, 1999, Respondent ALLEN WILLIAMS shall pay to Petitioner SHEREE WILLIAMS as and for spousal support the sum of Four Thousand Two Hundred Dollars ($4,200.00) per month, payable on the first day of each and every month until Petitioner's death, Respondent's death, Petitioner's remarriage, or further Order of the Court." Sheree also received community property valued at approximately $1.3 million at the time of the dissolution.
The judgment of dissolution contained a Gavron warning stating: "It is the goal of this state that each party shall make reasonable good faith efforts to become self-supporting as provided for in Family Code section 4320. The failure to make reasonable good faith efforts may be one of the factors considered by the court as a basis for modifying or terminating spousal support." A subsequent judgment on reserved issues filed in December 1999 contained an identical warning.
In re Marriage of Gavron (1988) 203 Cal.App.3d 705.
On May 14, 2008, Allen filed a motion to terminate or reduce spousal support on the ground that Sheree had the ability but failed to obtain employment or become self-supporting. Sheree filed a responsive declaration stating that, at the time of the divorce, she and Allen agreed that "an income of roughly $125,000 per year would be sufficient to preserve the lifestyle that we had during the marriage. My share of the assets would generate about $50,000 per year in income, Allen would make support payments to me in the amount [of] $50,400 per year, and the other $25,000 per year would need to come from my own efforts investing, or otherwise supplementing my income."
Sheree also stated she believed the support payments would continue for the rest of her life. She said she left Santa Barbara and moved to Santa Clarita to reduce expenses, but still had to use some of her investment assets for living expenses. She also stated that in 2007, her investment income was only $1,722 per month. Sheree pointed out that, in contrast to her modest income, Allen and his new wife reported $920,000 in income on their 2007 tax return. She stated that she had problems with dyslexia and depression which interfered with her ability to seek employment. She had attempted to take a real estate sales course, but did not complete it because of her dyslexia. Sheree also stated that Allen had understated his income and assets both at the time of the divorce and presently.
Allen filed a reply declaration stating Sheree had not shown she had made "reasonable good faith efforts to become self-supporting" as required by the dissolution judgment. He denied that, at the time of dissolution, he intended to support Sheree for the rest of her life, but instead believed she would become self-supporting as required by the Gavron warning.
The trial court's decision states in part: "The 5/7/99 Judgment and the 12/29/99 Judgment on Reserved Issues both contain the preprinted language at item 4(m) giving the Family Code §4320 admonition regarding the duty of each party to become self-supporting.
"A supported party should not be compelled to invade principal assets to provide for his or her own reasonable support, where the supporting party is able to pay. Sammut v. Sammut (1980) 103 Cal.App.3d 557, 564; In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 313.
"In 1999 the parties determined that approximately $125,000 would be required for Sheree to maintain the marital standard of living, comprised of $50,000 of income from income producing assets received by Sheree in the marital settlement agreement, $50,000 in permanent spousal support, and $25,000 from Sheree's efforts to supplement her income.
"Sheree has not used reasonable efforts to become self-supporting and has been required to invade principal in order to maintain a standard of living below the marital standard of living and the court has considered these factors as well as other factors in arriving at its decision.
"The income of Allen and his present spouse reported on tax returns for 2007 is $920,923. There is sufficient opportunity [for] Allen through his control of closely held business entities to hide and manipulate income that it is reasonable to use legal process to compel disclosure and testimony and to conduct substantial discovery to develop relevant facts to determine whether permanent spousal support should be decreased, increased, or remain the same."
On appeal, Allen asserts the trial court abused its discretion in denying his motion to terminate or decrease spousal support because (1) there is no substantial evidence that there was an agreement as to the amount and source of support to maintain the standard of living at the time of the divorce, (2) the trial court gave more weight to Allen's ability to pay support than Sheree's duty to become self-supporting, and (3) Sheree had a sufficient separate estate to meet her needs. He also asserts the trial court abused its discretion by denying his request for a Gavron warning with a date certain.
DISCUSSION
Standard of Review
We review an order modifying spousal support for abuse of discretion. (In re Marriage of Drapeau (2001) 93 Cal.App.4th 1086, 1096.) "'"Because trial courts have such broad discretion, appellate courts must act with cautious judicial restraint in reviewing these orders."... '" (Ibid.)
"In exercising its discretion the trial court must follow established legal principles and base its findings on substantial evidence. If the trial court conforms to these requirements its order will be upheld whether or not the appellate court agrees with it or would make the same order if it were a trial court." (In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 47, fn. omitted.) Under the abuse of discretion standard, we do not disturb the trial court's ruling unless, "'... considering all the relevant circumstances, the court has "exceeded the bounds of reason" or it can "fairly be said" that no judge would reasonably make the same order under the same circumstances....'" (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 479-480.)
Standards for Modification of Spousal Support
A party may seek an adjustment in the terms of a spousal support order upon a showing of a material change in circumstances since the last order. (In re Marriage of Smith, supra, 225 Cal.App.3d at p. 480.) A change of circumstances means a reduction or increase in the supporting spouse's ability to pay or an increase or decrease in the supported spouse's needs based on the standard of living established during the marriage. (In re Marriage of West (2007) 152 Cal.App.4th 240, 246.) The court must also give effect to the intent and reasonable expectations of the parties as expressed in a marital settlement agreement. (In re Marriage of Aninger (1990) 220 Cal.App.3d 230, 238.) The ability of a supported spouse to become self-supporting may constitute a change in circumstances. (In re Marriage of Shaughnessy (2006) 139 Cal.App.4th 1225, 1238.)
In determining whether modification is appropriate, the court must consider the factors set forth in Family Code section 4320, including the obligations and assets of each party; the balance of hardships; the job skills of the supported spouse and the market for those skills; the duration of the marriage; the age and health of the parties; the goal that the supported party shall be self-supporting within a reasonable period of time; and any other equitable factor. (In re Marriage of West, supra, 152 Cal.App.4th at p. 246; In re Marriage of Bower (2002) 96 Cal.App.4th 893, 899.) If a court's initial spousal support order contemplates that a supported spouse will take some action to decrease the need for spousal support following the issuance of the order and the supported spouse fails to take that action, the court may modify the award on the ground of changed circumstances. (Marriage of West, at p. 246.) However, the court is not obligated to modify spousal support merely because the supported spouse failed to heed a Gavron warning. (See, e.g., In re Marriage of Stephenson (1995) 39 Cal.App.4th 71, 78 ["'[A]lthough a showing of changed circumstances is necessary to obtain the court's consideration of a modification of spousal support, it does not ensure that a modification will be granted'"].)
All statutory references are to the Family Code unless otherwise stated.
The Trial Court Did Not Abuse Its Discretion in Denying Modification
Allen contends that the court's finding regarding the parties' intent at the time of the dissolution as to the level of support needed to maintain Sheree's standard of living is not supported by substantial evidence. This contention is belied by the record. Sheree submitted a declaration in opposition to the motion for modification stating that the parties agreed that "an income of roughly $125,000 per year would be sufficient to preserve the lifestyle that we had during the marriage. My share of the assets would generate about $50,000 per year in income, Allen would make support payments to me in the amount [of] $50,400 per year, and the other $25,000 per year would need to come from my own efforts investing, or otherwise supplementing my income."
We review the trial court's determination for sufficient evidence after deferring to its factual findings and credibility determinations. (Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1502, fn. 6.) We must accept as true all evidence tending to establish the correctness of the trial judge's findings regarding modification of spousal support, resolving all conflicts in the evidence in favor of the prevailing party and indulging all legitimate and reasonable inferences to uphold the judgment. (In re Marriage of Bower, supra, 96 Cal.App.4th at p. 899.) The testimony of a single witness, even a party, may constitute substantial evidence. (Evid. Code, § 411; In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) The trial court was within its discretion to believe Sheree's declaration and use it to make its order.
Allen's argument that the trial court improperly weighed certain of the factors the court is required to consider under section 4320 is similarly without merit. The trial court's order shows that it carefully considered the relevant factors in section 4320. "In balancing the applicable statutory factors, the trial court has discretion to determine the appropriate weight to accord to each." (In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 304.) As a reviewing court, we do not reweigh the evidence. (In re Marriage of Calcaterra and Badakhsh (2005) 132 Cal.App.4th 28, 31.)
Allen's assertion that Sheree had a sufficient separate estate to support her needs also is not supported by the record. Sheree testified that her separate property did not provide income sufficient to support her. As stated above, Sheree's declaration in this regard constitutes substantial evidence. To refute this, Allen must submit more than mere argument. (See In re Marriage of Hopwood (1989) 214 Cal.App.3d 1604, 1607-1608 [argument by counsel does not constitute credible evidence].) Moreover, the failure to save or invest the supported spouse's community property share does not justify support reduction and is irrelevant where no increase in support sought. (In re Marriage of West, supra, 152 Cal.App.4th at pp. 250-251.)
Similarly, the trial court's refusal to restate the Gavron warning or require Sheree to become self-supporting by a date certain is not an abuse of discretion. Sheree testified she had physical and psychological problems that impeded her ability to become self-sufficient. The trial court is the sole arbiter of credibility and Sheree's declaration constitutes substantial evidence of her inability to become self-supporting. (In re Marriage of Baker (1992) 3 Cal.App.4th 491, 498 [refusal to issue order terminating support on date certain not an abuse of discretion where court considered supported spouse's medical problems, age and lack of marketable skills].) The Family Code contains methods by which Allen can refute Sheree's evidence in this regard, if he so chooses. (§ 4331.)
Although the trial court found that Sheree had not used reasonable efforts to attain self-sufficiency despite twice being warned to do so, it was not obligated to modify or eliminate the spousal support order. The original spousal support order contemplated continuing support until Sheree's death or remarriage. Allen's dramatic increase in income coupled with Sheree's overall reduction in income justified the trial court's declining to modify support. There was no abuse of discretion.
The order is affirmed. Respondent shall recover costs on appeal.
We concur: YEGAN, Acting P.J., COFFEE, J.