Spousal Support - All Things To All People

In light of the wide discretion afforded family law judicial officers, it is often said that a trial judge can find support for almost any position. The recent Fourth District decision In Re Marriage of Shaughnessy, 2006 DJDAR 6552, provides explanation for that contention.

Michelle and Greg were married November 1979 and separated in March 1995. The parties had no children. Greg filed for divorce in August 2000. Marital status was bifurcated pursuant to a Judgment of September 31, 2002, with the court reserving jurisdiction on the remaining issues, including spousal support. On April 24, 2003, the Court entered a partial Judgment on spousal support. Although Greg had been paying support since separation, the court ordered Greg to pay $2,000.00 per month. The court made detailed findings (14 paragraphs) in support of its order.

In May of 2004, Greg filed a modification of spousal support requesting either a termination of support or a “step-down” of support. Greg asked for a vocational evaluation of Michelle, which was granted. On February 2005, the court made the following order: That effective January 1, 2006, Greg’s support would be reduced to $1,000.00 per month and then would terminate effective June 30, 2006, unless Michelle was able to demonstrate a “compelling” reason to extend support. The trial court again issued detailed findings in support of the decision. The findings were:

1. The parties were married for 15 years;
2. (Greg) has been paying spousal support to (Michelle) for almost ten years;
3. Michelle was forewarned by the trial judge that she should be looking at seven years to begin to be self-supporting;
4. Michelle does have a benign tumor but that does not affect her ability to become self-supporting; it only effects her higher health care premiums;
5. Michelle is still relatively young at 46 years of age;
6. Michelle now has separate property investments in the amount of $500,000.00;
7. (Michelle) has continued in a floral business despite the fact that she now claims that she nets only around $650.00 per month from the business. (Michelle) should have been aware that if the above is true, the floral business is not the means for her continued long term economical well being. On the other hand, (Michelle) stated to the vocational expert that she netted $30,000.00 ($2,500.00 per month) from the business;
8. (Michelle) states that she is gifted $20,000.00 per year from her parents;
9. The court has considered the Family Law (section) 4320 factors and finds there has been a change in circumstances that warrants modification of spousal support.

Michelle appealed, stating that the trial court had demonstrated an abuse of discretion on several issues in first modifying and then terminating her spousal support. The appellate court disagreed.

In affirming the decision, the Appellate Court indicated that pursuant to In Re Marriage of Schmir (2005)134 Cal.App.4th 43, the proper standard for review of any spousal support order is abuse of discretion. The Appellate Court then quoted from In Re Marriage of Bower (2002)96 Cal.App4th 893,899, as to exactly what would constitute abuse of discretion in the spousal support context:

“In exercising discretion whether to modify a spousal support order, ‘the court considers the same criteria set forth in (Family Code) Section 4320 as it considered when making the initial order…’” (citation)

Family Code Section 4320 provides a specific statutory road map for setting and modifying spousal support. The code section provides, among other things, as factors to consider: the marketable skills of the supporting party; the work history of the supporting party; the extent to which raising minor children and/or contributing to the career of the other party has impacted upon the supporting spouses ability to become self-supporting; the duration of the marriage; obligations and assets of the supported spouse, and the age and health of both parties.

In analyzing whether Michelle had failed to exercise due diligence in seeking to become self-supporting as required by Family Code Section 4320 and the specific findings from the trial court in 2003, the appellate court found that the 2005 trial court did a sufficient factual analysis of Michelle’s work situation to justify decision. As the Appellate Court stated

“We conclude that Michelle’s failure to diligently pursue retraining in order to attempt to become self-supporting constituted a change of circumstances justifying a modification of the spousal support order.”

The Appellate Court then had to deal with some specific findings by the trial court that were legally less clear and definitive.

Michelle contended that the trial court had abused discretion by considering monetary gifts from her parents as a basis for modifying spousal support.

The Appellate Court disagreed. In support of its position, the Appellate Court cited the catchall provision of Family Code Section 4320, to wit:

“…(n) Any other factors the court deems are just inequitable.”

As the Appellate Court stated

“There is no provision in the Family Code that expressly addresses whether a trial court may consider monetary gifts in awarding spousal support… The expressed provision in section 4320, subdivision (n) that a trial court is to consider any factors that the court determines are just and equitable in awarding spousal support…and the absence of a specific provision on the issue, all support the conclusion that there is no per se rule precluding a trial court considering monetary gifts a supported spouse may receive, in determining spousal support.”

The appellate court however, very clearly stated that it was not setting a bright line rule” regarding how gifts should be treated in a spousal support context. The court stated:

“In holding that a trial court may exercise its discretion to consider third party gifts to a supported spouse in determining a spousal support award, we emphasize that we do not hold that the trial court must mechanically decrease a supported spouse award by the amount of the gift received, or even that the trial court should in every case consider such gifts in determining the appropriate level of support. Rather we hold only that it is within the trial court’s broad discretion to consider evidence of monetary gifts as one factor together with evidence pertaining to all of the other sections 4320 factors in determining the appropriate spousal support award.”

Next, Michelle asserted that the trial court had abused its discretion by improperly weighing the factors under Family Code Section 4320. Specifically, Michelle asserted that her health care expenses had increased by approximately $6,000.00 per year and that Greg’s earnings had increased by approximately $10,000.00 per year from the 2003 findings. Michelle alleged that these facts were not properly weighed by the court. The appellate court disagreed. As it stated

“…we conclude the trial court did not abuse its discretion by failing to consider these facts. Rather the court considered this information together with all of the other sections 4320 factors in modifying the April 2003 spousal support award. This was not an abuse of discretion.”

Michelle further contended that the trial court abused its discretion by finding that she would become more self-supporting by the time of the reduction and termination of spousal support. The Appellate Court disagreed. The court stated:

“Trial courts have broad discretion in determining the meaning of ’self-supporting’ in any particular case. …although the marital standard of living is an important fact in determining spousal support, it is not the only factor, and its importance in determining whether it is ‘just and reasonable’ (citation) to award spousal support will vary based on the court’s evaluation of the section 4320 factors.

The trial court’s application of Family Code Section 4320(n) and the appellate court’s affirmation in Shaughnessy is indicative of the wide discretion afford the family law trial court when dealing with modifications of spousal support in long marriages.

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