Opinion
A123855 A124849 No. D0601070
10-15-2010
BRUCE McDIARMID, Respondent, v. ANDREA McDIARMID, Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
This appeal arises out of the contentious marital dissolution of Bruce and Andrea McDiarmid. Bruce petitioned for dissolution in March 2006, after a 23-year marriage. In October 2007, the court ordered Bruce to pay Andrea spousal support of $9,000 per month (initial support order). Bruce later moved to modify the initial support order after learning his income would be drastically reduced. In November 2008, the court granted Bruces motion to modify the initial support order. The final support order, effective January 1, 2009, required Bruce to pay Andrea spousal support of $5,000 per month, plus
We use the parties first names for clarity. "We... intend no disrespect. [Citation.]" (In re Marriage of Dietz (2009) 176 Cal.App.4th 387, 390, fn. 1.)
20 percent of any income Bruce might receive in excess of $24,583.33 per month. The court entered judgment on March 5, 2009.
Andrea appeals from the initial support order and the judgment. In this consolidated appeal, she contends: (1) the court erred by considering Bruces obligations to support the parties children when it calculated the amount of spousal support in the initial support order; (2) the initial support order contravenes Family Code section 4320; and (3) the final support order "is unjustifiable, and is tainted by the errors in the [initial] support order." We affirm.
All further statutory references are to the Family Code, unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Bruce and Andrea met when they were attorneys at the law firm of Pillsbury, Madison & Sutro (now known as Pillsbury Winthrop Shaw Pittman (Pillsbury or the firm)). Andrea was an associate; Bruce was a partner. Bruce and Andrea married in February 1983. Andrea left Pillsbury in 1983 after becoming pregnant. She did not work during the parties 23-year marriage: she stayed home to care for the parties four children, Alexander, born in 1984, Matthew, born in 1987, and David and Zachary (collectively, the twins), born in 1990. Matthew was cognitively disabled from early childhood.
Bruce petitioned for dissolution in March 2006. In June 2006, the court issued a restraining order protecting Bruce, Matthew, and the twins from Andrea. This restraining order was extended twice, until May 31, 2009. Bruce had custody of Matthew and the twins at all times after the parties separated. In February 2009, the court appointed Bruce as Matthews conservator.
The Initial Support Order
Following a trial, the court issued the initial support order requiring Bruce to pay Andrea $9,000 per month beginning on November 1, 2007. The court based its award of spousal support on a finding that Bruce had a monthly income of $43,333 and expenses of $14,347, including expenses to care for Matthew and the twins. The 18-page initial support order addressed each of the factors set forth in section 4320.
Section 4320 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 partys 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 partys 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 courts 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."
The Final Support Order and Judgment
In May 2008, Bruce moved to modify the initial support order. He alleged his annual compensation in 2008 had been "dramatically reduced" from $532,000 to
$295,000. According to Bruce, Pillsburys decision to reduce his compensation was extremely unusual and would likely require him "to leave" the firm.
Following an evidentiary hearing, the court granted the motion. It concluded there had been a material change in circumstances because Bruce would be earning considerably less than what he was previously earning — $24,583 per month rather than the $44,333 per month he was earning when the court issued the initial support order. The court determined the amount Bruce was going to pay in spousal support would not be sufficient for either party to enjoy the marital standard of living. The final support order, effective January 1, 2009, required Bruce to pay Andrea spousal support of $5,000 per month, and 20 percent of any monthly income Bruce received in excess of $24,583.33.
On January 9, 2009, the court issued an order addressing the parties objections to the final support order and making the following additional findings regarding spousal support: "[the] spousal support award has taken into consideration all of the factors under section 4320... including the marital standard of living, the ability of [Bruce] to pay support, as well as the needs of [Andrea] as measured by the marital standard [of living] as it existed as of the date of separation. The Court recently modified the amount of support which it awarded to [Andrea] as a result of declining income on the part of [Bruce]. The court further noted at that time that the reduced income of [Bruce] was such that neither party would be able to live at the marital standard of living, which would leave open to [Andrea] the ability to petition for modification of support if in the future [Bruce]s income increases." On March 5, 2009, the court entered judgment which incorporated the initial support order, the final support order, and the January 9, 2009 order.
Andrea appealed from the initial support order and the judgment. We consolidated the appeals.
DISCUSSION
Andrea challenges the award of spousal support on three grounds. First, she argues the court erred by including the childrens expenses when it calculated spousal support in the initial support order. Second, she claims the court improperly applied the factors set forth in section 4320 when it awarded spousal support, which created an "extreme imbalance in the parties lifestyles[.]" Finally, she argues the final support order suffers from the same flaws as the initial support order.
Standard of Review
"As a general rule, we review spousal support orders under the deferential abuse of discretion standard. [Citation.] We examine the challenged order for legal and factual support. As long as the court exercised its discretion along legal lines, its decision will be affirmed on appeal if there is substantial evidence to support it. [Citation.] To the extent that a trial courts exercise of discretion is based on the facts of the case, it will be upheld "as long as its determination is within the range of the evidence presented." (In re Marriage of Blazer (2009) 176 Cal.App.4th 1438, 1443, quoting In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 197 (Ackerman).) "An abuse of discretion is shown only when,.. after calm and careful reflection upon the entire matter, it can fairly be said that no judge would reasonably make the same order under the same circumstances. [Citation.]"" (In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 575 (Tydlaska), quoting In re Marriage of Reynolds (1998) 63 Cal.App.4th 1373, 1377.) "Because trial courts have such broad discretion, appellate courts must act with cautious judicial restraint in reviewing these orders." (In re Marriage of Ostler & Smith (1990) 223 Cal.App.3d 33, 50 (Ostler).) Andrea has the burden to establish an abuse of discretion. (Ackerman, supra, 146 Cal.App.4th at p. 213.)
Relying on In re Marriage of Sabine & Toshio M. (2007) 153 Cal.App.4th 1203, 1212 (Sabine), Andrea contends this case is suitable for de novo review. We disagree. In Sabine, the appellate court affirmed the trial courts determination that a contract relieving the husband of responsibility for delinquent spousal and child support was void as against public policy. (Id. at p. 1212.) In doing so, the appellate court applied a de novo standard of review because the evidence "is not in dispute." (Ibid.) Here, the issue — the adjudication of spousal support — is much different than the issue in Sabine. In addition, the evidence is "in dispute." (Ibid.) As a result, Andreas reliance on Sabine is misplaced and we review the initial support order for abuse of discretion. We also review the final support order for abuse of discretion. (Tydlaska, supra, 114 Cal.App.4th at p. 575; In re Marriage of Shaughnessy (2006) 139 Cal.App.4th 1225, 1235.)
The Court Did Not Abuse its Discretion by Considering Expenses Related to Bruces Care of Matthew and the Twins When Calculating Spousal Support
As stated above, Bruce had custody of Matthew and the twins after the parties separated, in part because a restraining order protected Bruce and the children from Andrea. Bruce did not seek child support from Andrea, but his August 2007 income and expense declaration listed $14,347 per month in expenses, which included $4,000 for Matthew (who needed constant care and supervision), $650 for education expenses, and $2,000 for groceries. In its initial support order, the court concluded Bruces expenses "reflected child related expenses which increased his financial need and decreased his ability to pay spousal support." The court explained that although Bruce was "not seeking child support for the two minor children, or assistance for the care of the parties[] adult dependent child,... these are financial responsibilities of both parties, which [Bruce] has agreed to assume at this time and which have an impact on both the needs of [Bruce] and the ability of [Bruce] to pay support."
In comparison, Andreas monthly expenses were $22,578. Of this amount, $17,330 was for living expenses.
Andrea seems to suggest the court could not consider "child expenses" as part of Bruces "needs" (§ 4320, subd. (d)) because the parties stipulated Bruce was not seeking child support. While she is correct that Bruce did not seek child support from Andrea, he did not stipulate that the court could not consider the expenses he incurred in caring for Matthew and the twins when it calculated spousal support.
Andreas first contention is the court was not "authorized" to consider Bruces financial obligation to care for Matthew and the twins when it determined how much spousal support she would receive. In effect, Andrea urges us to adopt a rule that a supporting partys financial responsibilities to his or her children cannot be relevant to his or her ability to pay spousal support. We decline to do so.
As we discuss in more detail below, the trial court must consider several factors when it awards spousal support, including the "ability of the supporting party to pay spousal support" and the "needs of each party" based on the marital standard of living. (§ 4320, subds. (c), (d).) The court must also consider the "balance of the hardships to each party." (§ 4320, subd. (k).) These factors encompass the supporting partys ability to pay spousal support when the supporting party has custody of the parties children. This is so because "[e]ach spouses... obligations to support others may also impact" the spouses "need[s]" and his or her "ability to pay... an appropriate amount of spousal support." (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2010) ¶ 6:910, p. 6-331 (Hogoboom).) It seems logical that when the supporting party has custody of the children, that party will have less and may have no "disposable income available to pay spousal support" to the supported party. (Hogoboom, supra, § 6:911, p. 6-331, quoting In re Marriage of Fini (1994) 26 Cal.App.4th 1033, 1043; § 4053, subd. (i).) That Andrea would not have been required to pay child support because of her lack of income does not mean the court should have turned a blind eye to Bruces child-related expenses when it determined his "needs" and his "ability... to pay spousal support." (§ 4320, subd. (c), (d).) The court did not abuse its discretion when it complied with its statutory obligations and considered Bruces needs, his ability to pay, and the balance of the hardships when it awarded spousal support. (§ 4320, subds. (c), (d), (k); In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 315 (Cheriton) [record must reflect that trial court considered the statutory factors in exercising its discretion when determining spousal support].)
Andreas reliance on In re Marriage of Ames (1976) 59 Cal.App.3d 234, 239 is misplaced. In that case, the trial court awarded the former wife — who had custody of the parties child — spousal support and child support. (Id. at p. 236.) On appeal, the former wife claimed the amount of child support was insufficient; in response, the former husband contended an award of child support that was deemed too low could be offset by a seemingly high spousal support award. (Id. at pp. 238-239.) The appellate court rejected this argument and explained, "Under section 4801 of the Civil Code, spousal support is to be awarded for the support of the other party.... Similarly, under section 4700, child support is to be an amount necessary for the support, maintenance, and education of the child. The exhaustive list of considerations for the determination of the proper amount of spousal support found in In re Marriage of Lopez [(1974)] 38 Cal.App.3d 93, 116-117, contains no hint that the court is to include in the award to the spouse any contribution for the support of the child." (Ames, supra, 59 Cal.App.3d at p. 239.) Here and in contrast to Ames, Bruce had custody of the parties children but was not receiving spousal support or child support. The award of spousal support, therefore, does not contain "any contribution for the support of the [parties] child[ren]." (Ibid.)
Ames was decided before the Legislature enacted section 4320 in 1992. (Stats. 1992, ch. 162, § 10, p. 582.)
Another case upon which Andrea relies, In re Marriage of Lynn (2002) 101 Cal.App.4th 120, 133 (Lynn), is also inapposite. There, the appellate court reversed an award of spousal support because the trial court did not consider the section 4320 factors. (Lynn, supra, at pp. 132-133.) The Lynn court explained that the lower court did not consider what it called the "critical factor:" the husbands ability to pay spousal support. (Id. at p. 133.) Instead, the "court simply accepted [the wifes] figure of $1,500 per month for spousal support... without any explanation of how she arrived at this amount." (Id. at p. 132.) Contrary to Andreas argument, Lynn does not stand for the proposition that a trial court may not consider child-related expenses under the umbrella of the supporting partys "needs" and "ability to pay" pursuant to section 4320. Moreover, Lynn is distinguishable because here, the court properly considered the statutory factors, including the "critical factor" of Bruces ability to pay. (Lynn, supra, at p. 133.)
Andrea also complains the court indicated it would, at some point in the future, consider Bruces continuing support of the twins during college on his ability to pay spousal support. Both parties discuss whether a court may consider a partys support of adult children when calculating spousal support. We need not resolve this issue because the court explicitly stated it did not "speculate as to [Bruces] continuing support obligation upon the [twins] graduation from high school...." The court simply indicated it might, at some future date, consider Bruces support of the twins during college as a factor in determining his ability to pay spousal support.
Andrea asserts that certain events occurring after judgment was entered should be considered in our review of the trial courts initial support order, and the parties make arguments and counter arguments regarding whether Andrea may seek a modification based on these events. Bruce suggests Andrea may move to modify spousal support based on a change of circumstances when the twins are emancipated; Andrea complains she is unable to seek a modification of the amount of spousal support. She claims "[a] termination of the obligation to provide for ones child is not grounds for modification of spousal support unless the conditions of... section 4326, subdivision (a) are satisfied." (Boldface in original.) Section 4326 authorizes a modification of spousal support when a child support order is in effect and child support is terminated when the child turns 19 or turns 18 and graduates from high school. (§ 4326, subd. (a).)
Andrea represents that Matthew died in May 2009, a fact which she argues should create another ground to modify spousal support. She has filed an unopposed request to take judicial notice of a certified copy of Matthews death certificate to establish this fact. We need not reach the issue of whether the trial court should consider the reduction in childrens expenses based on these apparent changed circumstances. These postjudgment events were not before the trial court and we do not consider them. While a death certificate is the proper subject of a request for judicial notice (Evid. Code, §§ 452, 459; Health & Saf. Code, § 103550), we deny Andreas request for lack of relevance.
The Courts Assessment of the Section 4320 Factors Reflected in the Initial Support Order is not an Abuse of Discretion
Andreas main contention is the initial support award was an abuse of discretion "in light of the... [section] 4320 factors." It is well settled the trial court must consider the factors set forth in section 4320 when determining whether to award permanent spousal support. (§ 4320; Cheriton, supra, 92 Cal.App.4th at p. 302 & fn. 20.) These factors include the ability of the supporting party to pay; the needs of each party based on the marital standard of living; the obligations and assets of each party; the balance of hardships to each party; and the goal that the supported party be self-supporting within a reasonable period of time. (§ 4320, subds.(c)-(e), (k), (l).) If the trial court applies the factors in section 4320, it has broad discretion to determine the "amount and duration of spousal support[.]" (Cheriton, supra, 92 Cal.App.4th at p. 283.) As discussed above, we uphold the courts decision "as long as its determination is within the range of the evidence presented. [Citation.]" (Ackerman, supra, 146 Cal.App.4th at p. 197, quoting In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 670.)
Andrea argues the court erred in applying the section 4320 factors. We address each factor below and we disagree.
A. Earning Capacity/Cost of Living
The first factor a court must consider when ordering spousal support is "[t]he extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage," taking into account: (1) the marketable skills of the supported party, the job market for those skills, and possible need for retraining to obtain employment; and (2) whether the supported partys earning capacity was impaired by periods of unemployment incurred to allow the supported party to devote time to domestic and child-rearing duties. (§ 4320, subd. (a).)
In its initial support order, the court determined Bruce earned $44,333 per month, which was not sufficient for either party to enjoy the marital standard of living. The court also found Andreas earning capacity had been "impaired by periods of unemployment that were incurred during the marriage to permit her to devote time to domestic duties," specifically caring for Matthew, a child with special needs. The court concluded Andrea had a law degree and was "bright, and educated, but without substantial work experience outside of the home."
Andrea contends the "marital standard of living and the parties dramatically contrasting earning capacities militate in favor of a much higher support award... given Bruces substantial income." Andrea places too much emphasis on the marital standard of living. In evaluating the relevant statutory factors to determine permanent spousal support, "the actual marital standard of living" is not "an absolute measure of reasonable need, but merely a basis or reference point for determining need and support." (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 484 (Smith).) "The marital standard of living is only one circumstance to be considered in adjudicating spousal support. It was never intended, and has never been viewed, as the sole determinative factor. [¶]... The statute does not eliminate judicial discretion to award spousal support in amounts greater or less than the martial standard of living based on all of the [section] 4320 factors." (Hogoboom, supra, ¶6:949, p. 6-346.5, original italics.)
Here, the court correctly determined the decrease in Bruces income meant he no longer earned an amount sufficient to support the marital standard of living. Andrea "has failed to recognize that circumstances have indeed changed and the wealth to which the parties had become accustomed is no longer guaranteed." (In re Marriage of Mosley (2008) 165 Cal.App.4th 1375, 1389.) The court properly considered the martial standard of living, Andreas job prospects, and her devotion to domestic duties during the marriage when it awarded spousal support. (§ 4320, subd. (a)(1), (2).) And, as discussed below, the court considered these circumstances in conjunction with the remainder of the section 4320 factors. Andrea has not demonstrated an abuse of discretion.
B. Contribution to Supporting Partys Education or Career
The next factor the court considered was "[t]he extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party." (§ 4320, subd. (b).) The court determined both parties were trained and employed as attorneys when they met, and that Andrea "stayed home and took care of domestic duties, thereby freeing [Bruce] to vigorously pursue his career, which he did so very successfully."
In addition to being trained as a lawyer, Andrea had a masters degree and a teaching credential.
Without citing any authority, Andrea contends this section 4320 factor "supports a generous support award, and certainly cannot justify the disproportionate support outcome here." It is well settled that the court has the discretion to determine "how much weight should be given" to each of the section 4320 factors. (Smith, supra, 225 Cal.App.3d at p. 494.) Andrea has not explained how the court misapplied this factor, nor has she demonstrated the court did not give this factor the proper weight. (Cf. In re
Marriage of Watt (1989) 214 Cal.App.3d 340, 351 [order denying spousal support reversed where trial court disregarded wifes substantial contributions to husbands attainment of medical degree].) The court did not consider this factor in isolation — the court considered it along with all of the remaining section 4320 factors and arrived at a "just and reasonable" support award under the circumstances. (Smith, supra, 225 Cal.App.3d at p. 494; see Ostler, supra, 223 Cal.App.3d at p. 49 ["trial court complied with the legislative mandate to consider the extent to which [wife] contributed to [husbands] career...."].)
C. Supporting Spouses Ability to Pay
Next, the court must consider "[t]he ability of the supporting party to pay spousal support, taking into account the supporting partys earning capacity, earned and unearned income, assets, and standard of living." (§ 4320, subd. (c).) After considering this factor, the court determined Bruce had the ability to pay spousal support, but not at the level necessary to allow both parties to live at the marital standard of living.
Andrea repeatedly contends Bruce had "the ability to pay" support "commensurate with the marital standard of living of $51,000" based on his ability to "save[] over $155,000" annually. As we have already discussed, the court properly determined Bruce did not earn enough to allow both parties to "live at the marital standard of living." Andreas contention that Bruce was able to "save over $155,000 per year" is flawed for two reasons. First, Andrea did not raise this argument in the trial court. Andrea requested a statement of decision and objected to the initial support order and proposed statement of decision, but she did not claim the initial support order was somehow erroneous because it allowed Bruce to save "over $155,000" annually. Having failed to raise this argument in the trial court, Andrea cannot now complain about it on appeal. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1134.)
In December 2007, the court determined Bruce "had not failed to disclose assets or income, and had fully and fairly disclosed his financial situation as required to do under the [F]amily [C]ode."
Second, the argument overlooks the fact that the court has "broad discretion to include, exclude or partially include contributions to individual retirement plans or earnings and accruals of such plans not actually withdrawn as income available to pay permanent spousal support." (Hogoboom, supra, § 6:880, p. 6-315, citing In re Marriage of Olson (1993) 14 Cal.App.4th 1, 13.) We cannot conclude ""no judge would reasonably make the same order under the same circumstances. [Citation.]"" (Tydlaska, supra, 114 Cal.App.4th at p. 575, quoting In re Marriage of Reynolds (1998) 63 Cal.App.4th 1373, 1377.)
D. The Needs of Each Party Based on the Marital Standard of Living
Another factor the court must consider when awarding spousal support is "[t]he needs of each party based on the standard of living establishing during the marriage." (§ 4320, subd. (d).) "The marital standard of living has been described as "reasonable needs commensurate with the parties general station in life. [Citation.]" [Citation.] The actual marital standard of living is not an absolute measure of reasonable need, but merely a "basis" or reference point for determining need and support. [Citation.] It is a general description, not intended to specifically spell out or narrowly define a mathematical standard. [Citation.] As such, it is not in and of itself sufficient to sustain an award of permanent support. [Citation.] Likewise, a disparity in income, standing alone, does not justify an award of spousal support. [Citation.] [Citation.] In assessing the parties marital standard of living, the trial court may consider their income, expenses, and lifestyle during their marriage. [Citation.]" (Ackerman, supra, 146 Cal.App.4th at pp. 207-208.)
Here, the court determined the average marital standard of living was $51,000. The court also concluded, however, that Bruces income had decreased and that he "no longer earn[ed] the amount reflected as the basis for the marital standard of living." As a result, the court adopted a finding of $44,333 per month as "a reasonable estimate" of what Bruce would earn. The court noted that Bruce was living in a condominium with Matthew and the twins, and that Bruces monthly living expenses were $14,347, $4,000 of which was for Matthews care. In contrast, Andreas total expenses ranged from $22,578 to $34,848 per month.
Andreas calculation of $34,848 was based on the assumption that she would have full custody of Matthew. After the parties separated, however, Matthew lived exclusively with Bruce because a restraining order limited Andreas contact with Matthew to supervised visits.
Andrea contends the court did not consider her "court-approved" spousal support needs of $22,578 per month. We disagree with Andreas contention that her spousal support needs were "court-approved." The court rejected Andreas argument that she needed $1,730 per month to pay for supervised visitation with Matthew, concluding it would be inappropriate to award additional spousal support to defray the cost of supervised visitation because such supervision was "necessitated solely by" Andreas actions. The court also rejected Andreas claim that the award of spousal support should include her educational expenses of $3,518 per month to pursue her Ph.D. As the court explained, Andreas decision to pursue a Ph.D. "at the somewhat substantial cost of $3518 per month" was not a responsibility Bruce was required to assume, especially when Andrea was "already a well-educated woman with a law degree" who could pursue a job in the legal field. The record demonstrates the court considered Andreas claimed needs of $22,578 per month but found them unreasonable. The court "was not required to accept [Andreas] assertion of claimed expenses and acted within its broad discretion in determining what it deemed actual needs and expenses." (Ackerman, supra, 146 Cal.App.4th at p. 208.)
Andreas other claim is the initial support order created an "extreme imbalance in the parties lifestyles[.]" Even if we assume for sake of argument that Bruce enjoyed a lifestyle after the marital dissolution that was more comfortable than Andreas, "equality of postseparation income is not an element of section 4320 in setting spousal support." (Ackerman, supra, 146 Cal.App.4th at p. 209.) Section 4320 does not "guarantee [Andrea] dollar-for-dollar equality between her postseparation income and [Bruce]s." (Ibid.)
E. The Obligations and Assets of Each Party
Another factor the court must consider is the "obligations and assets... of each party." (§ 4320 subd. (e).) Andrea contends "this factor favors higher spousal support than was awarded here" because Bruce had significant retirement savings.
Andreas reliance on In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 51 is misplaced. There, the trial court granted the former husbands motion to terminate spousal support and the former wife appealed. (Id. at p. 46.) The appellate court concluded the trial court erred by terminating spousal support without giving the former wife notice and an opportunity to find a job. (Ibid.) The court also concluded, however, that there was sufficient evidence to support the order, specifically that there had been a change of circumstances because the former wife could, among other things, make penalty-free withdrawals from her retirement account. (Id. at pp. 50-51.) The Schmir court noted that "the trial court possesses broad discretion to determine whether to consider as income available for spousal support purposes contributions made by a participant to his or her retirement plan[.]" (Id. at p. 52, quoting Olson, supra, 14 Cal.App.4th at p. 13, bracket in original.)
Here, the court considered the extensive evidence regarding the parties assets, including the parties retirement savings. We see no abuse of the courts broad discretion to determine whether to consider Bruces retirement contributions as income available for spousal support.
F. The Duration of the Marriage and the Age and Health of the Parties
The court complied with its statutory duty when it considered the "duration of the marriage" and the "age and health of the parties." (§ 4320, subds. (f), (h).) Andrea has failed to demonstrate how the courts consideration of these factors was erroneous.
G. Documented History of Domestic Violence
The next factor the court must consider is the "[d]ocumented evidence of any history of domestic violence" between the parties. (§ 4320, subd. (i).) While the court noted that a domestic violence restraining order had been issued to protect Bruce, Matthew, and the twins from Andrea, it explained it did not give "great weight" to this factor "in determining the amount of [spousal] support" because Andrea overcame the presumption against awarding spousal support to the abusing spouse.
Andrea claims this factor "is of minimal significance here." The court apparently agreed with Andreas claim, and we fail to see what Andrea finds objectionable about the courts decision to give section 4320, subdivision (i) little weight. Given her claim that section 4320, subdivision (i) is "inapplicable," we deny her request to take judicial notice of the legislative history behind section 4320, subdivision (i).
H. Tax Consequences
Section 4320 requires the court to consider the "immediate and specific tax consequences to each party" when determining spousal support. (§ 4320, subd. (j).) Here, the court concluded Bruce would deduct his spousal support payments for tax purposes and Andrea would claim support as income. The court stated that Bruces marginal tax rate of 40 percent was higher than Andreas tax rate.
Andrea complains that the court erred by failing to specify her tax rate. According to Andrea, had the court specified her tax rate, it would have realized she did not receive enough spousal support to cover her "reasonable needs." There are several problems with this argument. First, we have already determined the court did not abuse its discretion when it considered the parties needs pursuant to section 4320, subdivision (d) and determined some of Andreas "needs" were not reasonable. Second, she did not produce evidence to support such a finding. We disagree with Andreas contention that the court "refuse[d] to admit" evidence regarding Andreas tax rate. We have carefully reviewed the evidence upon which Andrea relies in her opening brief and conclude it does not concern her tax rate or after tax income. At trial, Andreas forensic accountant testified about how the Dissomaster calculations treat mandatory and voluntary retirement plan deductions, not about how an award of spousal support would be taxed.
We deny Andreas request for judicial notice of the state and federal tax tables for 2007.
I. Balance of Hardships
Section 4320, subdivision (k) requires the court to consider "[t]he balance of the hardships to each party." The court considered this factor, specifically that: (1) Bruce had custody of Matthew and the twins and was not receiving financial assistance from Andrea; and (2) Andrea was pursuing education and training that would allow her to become self-sustaining in a reasonable period of time.
First, Andrea reiterates her complaint that the court erred by considering Bruces financial obligations in caring for the children when it calculated spousal support. We have considered, and rejected, this argument. Second, Andrea contends Bruce had "substantial income streams and trust accounts available to offset any hardship engendered by his support of the children." According to Andrea, Bruce could have raided his "childrens tax sheltered college funds" and their trust accounts to "ameliorate any hardship imposed by his custody of the children." This argument borders on the absurd. Andrea cannot seriously contend Bruce should liquidate his childrens trust and college savings accounts so that he can pay her more spousal support. Here, the court correctly rejected this argument, concluding Bruce was prohibited from using the childrens trust monies for his own benefit.
J. Goal that Supported Party Should be Self-Supporting in a Reasonable Time
The final factor the court considered was "[t]he goal that the supported party shall be self-supporting within a reasonable period of time." (§ 4320, subd. (l).) We fail to see how the court misapplied this factor, particularly where the court did not impute any earning capacity to Andrea or require her to seek employment in the near future. The court accepted Andreas argument that she should be allowed four years to complete a Ph.D. before any income would be imputed to her.
Based on the foregoing, we conclude the court "consider[ed] and weigh[ed] all of the [section] 4320 circumstances" and determined "the appropriate amount... of spousal support." (Hogoboom, supra, ¶ 6:925.5, p. 6-339.) Andrea has not established the initial support order was an abuse of discretion.
The Court Did Not Abuse its Discretion by Determining Changed Circumstances Warranted a Modification of the Initial Support Order
As discussed above, the court granted Bruces motion to modify the initial support order. The final support order requires Bruce to pay a minimum of $5,000 in spousal support, plus 20 percent of any income received by Bruce in excess of $24,833 per month. Andreas final claim is the courts "drastic downward" modification of spousal support in the final support order is "unjustifiable" because it is tainted by the errors the court apparently made in calculating spousal support in its initial support order.
"The trial court has broad discretion to decide whether to modify a spousal support order." (Tydlaska, supra, 114 Cal.App.4th at p. 575.) In exercising its discretion, "the court considers the same criteria set forth in section 4320 as it considered when making the initial order____[Citation.]" (In re Marriage of Bower (2002) 96 Cal.App.4th 893, 899, quoting In re Marriage of Terry (2000) 80 Cal.App.4th 921, 928.) "[A] modification of a spousal support award may be made only on a showing of a material change in circumstances subsequent to the last prior order. [Citation.] It follows a modification order must be based on current facts and circumstances." (In re Marriage of Sinks (1988) 204 Cal.App.3d 586, 592 (Sinks).)
Bruce made a "showing of a material change in circumstances subsequent to the [initial support] order." (Sinks, supra, 204 Cal.App.3d at p. 592.) He provided evidence his income had been drastically reduced and that, as a result, he had an inability to pay spousal support at the level set in the initial support order. Andrea has not demonstrated the court abused its discretion when it modified the initial support order.
DISPOSITION
The judgment is affirmed.
Jones, P.J.
We concur:
Needham, J.
Bruiniers, J.