Opinion
F074782
04-05-2018
In re the Marriage of DOREEN and SAMUEL ZAKI. DOREEN ZAKI, Respondent, v. SAMUEL ZAKI, Appellant.
Samuel Zaki, in pro per., for Appellant. Zepure Attashian for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 10CEFL03137)
OPINION
THE COURT APPEAL from an order of the Superior Court of Fresno County. Kristi Culver Kapetan, Judge. Samuel Zaki, in pro per., for Appellant. Zepure Attashian for Respondent.
Before Hill, P.J., Levy, J. and Peña, J.
-ooOoo-
Appellant, Samuel Zaki (Husband), challenges the trial court's order terminating spousal support. According to Husband, the trial court failed to consider all of the relevant factors for determining the amount of support under Family Code section 4320. Husband further contends that the trial court arbitrarily excluded evidence and that substantial evidence does not support certain of the trial court's findings.
All further statutory references are to the Family Code unless otherwise stated.
The trial court did not err as alleged. Accordingly, the order will be affirmed.
BACKGROUND
Husband and respondent, Doreen Zaki (Wife), were married on June 30, 2001, and separated on May 23, 2010, eight years 10 months later.
During the dissolution proceedings, Wife requested, and the court issued, a domestic violence protective order. The order restrained Husband from harassing and contacting Wife and required he stay at least 100 yards away.
The marriage terminated by a stipulated judgment of dissolution on August 20, 2012. The judgment ordered Wife to pay Husband $4,500 per month in spousal support. Upon Wife's retirement, spousal support would decrease to $3,500 per month. The judgment further provided support would terminate permanently upon the death of either party, Husband's remarriage, or further order of the court. Moreover, neither party waived their statutory rights to bring a motion to modify support based on changed circumstances.
In July 2013, Wife asked the trial court to renew the restraining order. Following a contested hearing, the court found that Husband had violated the restraining order on four separate occasions. Based on those violations, the court extended the restraining order for five years. This restraining order will expire on March 11, 2019.
In December 2014, Wife moved the court to modify and/or terminate spousal support. In July 2015, the court found that the renewal of the restraining order based on evidence of Husband's additional acts of domestic violence against Wife constituted a material change in circumstances. The court concluded it was therefore required to consider and reweigh the section 4320 factors and make an appropriate order for support.
The court held a contested evidentiary hearing on Wife's motion to terminate support. Through testimony, Husband claimed that he needed $9,000 per month in support due to his age, health and inability to obtain employment. After considering and applying the section 4320 factors, the court terminated spousal support.
Husband moved to set aside the order terminating spousal support. Husband claimed that the order violated the stipulated dissolution judgment and that the court did not consider all of the section 4320 factors. The trial court denied Husband's motion.
DISCUSSION
1. Standard of review.
"The trial court has broad discretion to decide whether to modify a spousal support order." (In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 575.) In exercising this discretion, the court must consider section 4320's mandatory guidelines. (In re Marriage of Left (2012) 208 Cal.App.4th 1137, 1150.) Nevertheless, it is up to the trial court to determine the appropriate weight to accord to each factor. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 304.)
The ultimate decision as to the amount and duration of spousal support rests within the court's broad discretion, a decision the appellate court will not reverse absent an abuse of that discretion. (In re Marriage of Left, supra, 208 Cal.App.4th at p. 1150.) "'An abuse of discretion occurs 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 Reynolds (1998) 63 Cal.App.4th 1373, 1377.) 2. The trial court considered all the applicable section 4320 factors.
In its findings and order, the trial court stated it had reviewed and considered the section 4320 factors "including the length of the marriage, the earning capacity of Petitioner and Respondent, the marital standard of living, the needs of the parties, tax consequences, hardships, assets and debts of the parties, ages and health of the parties, history of domestic violence and marketable skills." The trial court then made specific findings on each factor.
Husband argues the trial court failed to consider three of the section 4320 factors. According to Husband, the court did not consider his ongoing obligations to pay his personal health care expenses, his health, and the balance of hardships. The record belies Husband's claims. The trial court stated it considered these factors and there is no evidence that the court did not do so.
Regarding Husband's personal health care expenses and his alleged poor health, Husband presented no evidence to support his claims. Husband's income and expense declaration estimated he paid $1,050 per month for health care costs but Husband did not present any evidence of his actual expenses. The record also does not include any evidence of Husband's health or medical conditions because he moved in limine to exclude any such evidence and the court granted his motion.
In balancing the hardships to each party, the trial court noted that it was not a substantial hardship for Wife to continue support. However, the court found it would be an emotional hardship due to past instances of domestic abuse. This is a proper consideration in determining spousal support. (In re Marriage of Freitas (2012) 209 Cal.App.4th 1059, 1068.) The court further noted, "It is nearly impossible for the court to determine whether termination of support would cause financial hardship to [Husband] as he refused to provide documentation regarding his earnings and expenses." Since Husband did not produce sufficient evidence of his earnings and expenses, he cannot object to the trial court's adverse financial hardship finding. (Breland v. Traylor Engineering & Mfg. Co. (1942) 52 Cal.App.2d 415, 426.) 3. The trial court did not abuse its discretion by not considering evidence of Husband's medical conditions.
The trial court granted Husband's motion in limine to exclude "any and all evidence, references to evidence, testimony or argument relating to the nature, symptoms and prognosis of the medical conditions with which [Husband] has been diagnosed." In his motion to set aside the order terminating spousal support, Husband argued his request did not include "financial evidence of his past and present health and medical conditions" and therefore the trial court should have considered that evidence. Husband makes the same argument on appeal.
However, Husband requested the trial court to exclude "all evidence" relating to his medical conditions. The reasonable interpretation of this request is that it included the costs of treatment of, and medications for, those medical conditions. Husband did not alter or withdraw his in limine motion during the spousal support modification hearing. Accordingly, the trial court did not abuse its discretion when it complied with Husband's request. 4. The record supports the trial court's standard of living finding.
In exercising its discretion on spousal support, the trial court must consider the needs of each party based on the standard of living established during the marriage. (§ 4320, subd. (d).) Here, the trial court concluded that the marital standard of living appeared to fluctuate during the marriage. The court found that, "At the beginning, the standard of living appears to have been lower middle class." However, after Wife obtained an inheritance and got permission and authority from the trustee of her parents' estate to purchase a house, "the marital standard of living increased to moderate." Husband contends substantial evidence does not support this finding.
However, Wife presented evidence to the contrary. At the beginning of the marriage, Husband and Wife lived in a small, modest, older home that was in need of remodeling and maintenance. Husband was unemployed and Wife worked as a high school teacher. They drove older cars and shopped in thrift stores. After Wife's parents died, she received an interest in an inherited trust. She was able to purchase a new home but did not otherwise have access to the trust principal. Wife only received the trust income. Although Husband argues the parties had an extravagant lifestyle, he presented no evidence to support that claim.
Under these circumstances, the record supports the trial court's lifestyle finding. On appeal, we do not reweigh the evidence or reassess witness credibility. (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1531.) Rather, "'[w]e resolve all factual conflicts and questions of credibility in favor of the prevailing party and indulge all reasonable inferences to support the trial court's order.' [Citation.]" (Phillips v. Campbell (2016) 2 Cal.App.5th 844, 849-850.) Based on the above evidence, the trial court did not abuse its discretion in characterizing the parties' standard of living.
Husband also asserts the record does not support the finding that Husband is well educated and capable of some kind of employment, despite being 72 years old. However, Husband presented no evidence to the contrary and Wife testified that Husband told her that he had multiple engineering degrees, spoke several languages, and had held high-level positions. Thus, the record supports this finding. 5. The trial court did not improperly use the term "violence."
The court found, "There is documented evidence of a history of domestic abuse. There is a domestic violence restraining order in effect until 2019. There is a documented history of [Husband's] inability to comply with existing stay away orders." Husband objects to the court's use of the term "domestic violence" because there is no history of physical violence.
However, the trial court was merely following the wording of section 4320, subdivision (i). That subdivision provides the court must consider documented evidence of "any history of domestic violence, as defined in Section 6211, between the parties ...." Section 6211 defines domestic violence as abuse perpetrated against a spouse or former spouse. Abuse includes threatening or harassing the other party. (§§ 6203, 6320.) The documented evidence demonstrated Husband was threatening and harassing Wife. Thus, the court correctly used the term "domestic violence." There is no need for physical violence under this statutory scheme. 6. The trial court did not err in finding the marriage was of short duration.
The trial court found that this eight year 10 month marriage was short term. Husband argues this was error. Husband relies on a statistical analysis of the parties' ages when they married, their average life expectancies, and the average lengths of marriages ending in divorce to argue the marriage was long.
Section 4336, subdivision (b), provides that, for purposes of retaining jurisdiction, there is a presumption that a marriage of 10 years or more is a marriage of long duration. This marriage was less than 10 years and Husband presented no evidence at the spousal support modification hearing to demonstrate why the court should consider the marriage long. Accordingly, the trial court did not abuse its discretion in finding the marriage was of short duration. 7. The order terminating spousal support did not violate the stipulated dissolution judgment.
Husband argues that terminating his spousal support violated the dissolution judgment. That judgment provided that spousal support could terminate upon further order of the court. Further, the parties did not waive their right to bring a motion to modify support based on changed circumstances. This is what occurred here. Wife brought a motion to modify support based on changed circumstances and a further order of the court terminated the spousal support. Thus, no error occurred.
DISPOSITION
The order is affirmed. Costs on appeal are awarded to respondent.