Filed 8/23/12
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re the Marriage of ANDREA and
ANDREW LEFT
ANDREA NICOLE LEFT,
B230768
(Los Angeles County
Super. Ct. No. BD436243)
Respondent,
v.
ANDREW EDWARD LEFT,
Appellant.
APPEAL from an order of the Superior Court of Los Angeles County. Mark A.
Juhas, Judge. Affirmed.
Gary J. Cohen for Appellant.
Honey Kessler Amado and Erin M. Bogle for Respondent.
This matter arises out of dissolution of marriage proceedings between Andrew
Edward Left (Andrew) and Andrea Nicole Left (Andrea).1 On February 7, 2007, the
parties entered into a stipulation providing for Andrew to pay spousal support to Andrea
in the amount of $32,547 per month and child support in the amount of $14,590 per
month. A judgment of dissolution, as to status only, was entered on June 30, 2008. On
October 19, 2009, Andrew filed an order to show cause (OSC) application to terminate
spousal support, on the primary ground that Andrea had remarried. Andrea filed a
competing OSC application for contempt, on the ground that Andrew had failed to pay
spousal support. Andrew appeals from the trial courtâs order denying his application to
terminate spousal support and modifying the spousal and child support orders. We
affirm.
CONTENTIONS
Andrew contends that the trial court erred in determining that the ceremony that
Andrea participated in with Dr. Todd Katzman (Todd) did not constitute a remarriage
under Family Code section 4337.2 Further, Andrew contends, even if the ceremony did
not constitute a remarriage under section 4337, Andrea should be estopped from denying
that she has remarried. In addition, Andrew argues, by giving little or no weight to the
short duration of the partiesâ marriage, the trial court abused its discretion in declining to
terminate spousal support.
As to the modification of the spousal support order, Andrew contends that the trial
court erred by refusing to make the modification retroactive to a date prior to May 2010,
when Andrew filed an updated income and expense declaration.
As to the modification of the child support order, Andrew argues that the trial
court erroneously reserved jurisdiction to adjust the start date for the new child support
1
To avoid confusion and follow the convention in family law appeals, the parties
will be referred to by their first names.
2
All further statutory references are to the Family Code unless otherwise indicated.
2
order. Andrew requests that any references to the courtâs reservation of jurisdiction on
this issue be stricken.
BACKGROUND
1. The marriage and divorce
Andrea and Andrew were married in June 2001 and separated in February 2006.
Andrew is a stock trader. Andrea was a practicing attorney before the marriage and early
in the marriage, but she stopped working when she became pregnant in 2001. During the
marriage, Andrea did not work outside the home. There are two minor children of the
partiesâ marriage: Jordan, age 8, and Lauren, age 7.
On November 18, 2005, Andrea filed a petition for dissolution of marriage.
Andrew filed his response on June 3, 2008.
In December 2006, Andrea filed an order to show cause application for relief,
including temporary child support and spousal support. On February 7, 2007, the parties
entered into a stipulation under which Andrew agreed to pay child support of $14,590 per
month and spousal support of $32,547 per month.
As of mid-2008, there had not yet been an adjudication of contested issues. A
judgment of dissolution, status only, was entered on June 30, 2008. The ruling dissolved
the marriage, but the court reserved jurisdiction over all other issues.
2. Andreaâs commitment ceremony
At the end of December 2008, Andrea became engaged to marry Todd. At the
time that she set the date for her wedding, Andrea believed that she and Andrew would
have their issues resolved. Andrea and Todd set their wedding date for May 2, 2009, and
sent out wedding invitations in early March 2009. They began living together in
February or March 2009.
Andrea switched custodial weekends with Andrew so that the children could
attend the ceremony. She also advised her childrenâs school that she was getting married
and would be away on her honeymoon. She and Todd were registered at Bloomingdaleâs
for gifts.
3
According to Andrea, in the weeks before the wedding, it became clear that she
and Andrew would not be able to resolve the remaining issues regarding the divorce.
Neither she nor Todd were comfortable going forward with the wedding while the
litigation with Andrew was unresolved. Andrea stated that she did not want Todd
entangled in her divorce. However, because they had sent out invitations for a May 2,
2009 ceremony and had spent money on planned activities, they wanted to proceed with
the celebration.
On May 2, 2009, the celebration took place in Palm Springs. Andrea testified that
she would call the event a âcommitment ceremony.â She wore her wedding dress, and
she wanted the children to believe that she was getting married. She and Todd signed a
ketubah, which is a Jewish marriage contract. However, Andrea and Todd did not obtain
a marriage license.
According to Rabbi Haim Asa, who presided over the ceremony, when he arrived
in Palm Springs he believed he was going to preside over a wedding. Approximately 30
minutes before the ceremony, when Rabbi Asa would normally have had the parties sign
the marriage certificate, he learned that there was a problem getting the license. Rabbi
Asa did not inform the guests that he was not performing a wedding. Indeed, the guests
who testified stated that at the time of the ceremony they believed Andrea and Todd had
actually gotten married. Rabbi Asa called Andrea and Todd every month following the
ceremony to see whether they had obtained a civil license yet.
On June 24, 2009, Andrea informed Andrew that she and Todd were not really
married. On July 31, 2009, Andrew confirmed that he knew they were not married.
3. Andrewâs OSC to terminate or reduce spousal support
Andrew filed his OSC to terminate spousal support on October 19, 2009. The
primary ground for the application was Andreaâs remarriage to Todd. In the alternative,
Andrew requested termination based on a combination of factors: (1) the marriage was
one of short duration; (2) Andrew had already paid spousal support to Andrea for over
three years, which represented nearly three-fourths the length of the marriage; (3) Andrea
4
had a law degree, yet had made no effort to support herself; and (4) Andrea was
cohabitating with Todd.
4. Andreaâs application for writ of execution and OSC for contempt
The day after Andrew filed his OSC to terminate spousal support, Andrea filed an
application for writ of execution, claiming that Andrew owed her $247,666.86 in past due
support, plus accrued interest and costs. The application for writ of execution
encompassed payments due between December 2008 and October 2009. A writ was
issued the same day.
On November 5, 2009, Andrea filed an OSC for contempt based on Andrewâs
failure to pay the full amount of child and spousal support each month, for a time period
beginning in December 2008.
The parties appeared in court on December 1, 2009. The court set the contempt
OSC hearing for January 13, 2010. The court ordered Andrewâs OSC regarding
termination of spousal support to trail behind the contempt proceeding, and stayed
Andrewâs obligation to pay spousal support until his OSC could be heard. The court
made it clear that it needed âa current and updated income and expense declaration under
California Rule[s] of Court[, rule] 5.128â before it could consider the issues raised in
Andrewâs OSC. The court specified that Andrew was not required to respond to any
âfinancial issue OSC until after the resolution of the contempt.â
On December 28, 2009, $255,000 was garnished from Andrewâs E*Trade account
pursuant to the writ of execution issued on October 20, 2009. Andrew filed an ex parte
application to stay disbursement of the funds. The parties thereafter entered into a
stipulation pursuant to which the $255,000 was disbursed to Andreaâs counsel to be held
in trust pending further order of the court.
Trial of the contempt matter commenced on January 28, 2010, and continued on
February 8, February 11, March 29, and April 20, 2011. The court made it clear that all
testimony regarding both the OSC for contempt and Andrewâs OSC for termination of
support should be brought forth, so that the witnesses would not have to testify twice.
5
On April 30, 2010, the court found Andrew guilty of nine of the ten counts of
contempt.
5. Andreaâs OSC to amend the 2007 stipulation
On May 4, 2010, Andrea filed an OSC to amend the 2007 stipulation regarding
child and spousal support nunc pro tunc, or, in the alternative, for an immediate
disbursement of the community property due under paragraph 750.3 of the stipulation.3
Andrea sought this relief on the ground that Andrewâs earnings were substantially more
than he had disclosed at the time of the stipulation and that support should be modified to
be commensurate with his actual earnings.
Andrew filed a response to Andreaâs OSC. Andrew argued that the trial court did
not have jurisdiction to retroactively amend the February 7, 2007 stipulation and order.
He also argued that by agreeing that any income over 1.5 million in 2007 would be
deemed community property, the parties made this a property issue for trial. Andrew
argued that Andrea was seeking an early distribution of community property, and that any
such payment should only be considered with a calculation of the community taxes that
Andrew has paid on that money. In addition, Andrew pointed out that he recently
tendered a check to Andrea in the amount of $400,000 while the calculation of Andrewâs
excess income and the associated tax liability from 2007 was being calculated. Finally,
Andrew argued that Andrea was not entitled to spousal support in an amount that far
exceeds the marital standard of living.
Paragraph 750.3 of the stipulation provides: âThe orders presume that [Andrew]
will generate income from said trading of $1.5 [million] annually. Any income in the
accounts up to $1.5 [million] annually (1/07- 12/07) shall be [Andrewâs] income from
which he shall pay the support, and [Andrew] shall pay all federal and state tax liability
therein and shall indemnify and hold [Andrea] harmless therefrom. To the extent that
income is realized in excess of $1.5 [million] for 2007, the excess income is comm[unity]
prop[erty]. Each party shall be responsible for and pay the federal and state tax on the
income in excess of $1.5 [million]. The court reserves jurisdiction with regard to the
distribution of any excess income.â
3
6
6. Andrewâs updated income and expense declaration
On May 5, 2010, Andrew filed an updated income and expense declaration. The
declaration indicated that for the 12 months ending February 28, 2010, Andrewâs trading
activities resulted in a $2,242,576 loss, an average loss of $186,881 per month.
7. Rulings on the requests to modify support
On June 1, 2010, the parties appeared and presented argument concerning both
Andrewâs OSC for termination of spousal support and Andreaâs OSC to amend the
February 7, 2007 stipulation and order nunc pro tunc. The matter was submitted.
On September 14, 2010, the trial court filed a ruling on the submitted matter. The
court held that Andrea was not remarried, therefore the ânon-marriage ceremony several
months ago has no real effect on the support award.â Regarding Andreaâs cohabitation
with Todd, the court found the cohabitation to be grounds for reducing the support award,
and accordingly reduced Andreaâs spousal support from $32,547 per month to $20,000
per month.
Although Andrew wanted the order to be retroactive to May 2009, the date of
Andreaâs commitment ceremony, the court limited the retroactive application of the order
to May 15, 2010. The court noted that Andrew did not file an income and expense
declaration (form FL-150) until May 9, 2010. Based on the filing date of Andrewâs form
FL-150, the court stated that it could âonly go back in time to May 15, 2010 in modifying
support. [Andrew] cannot fail to comply with the courtâs filing requirements and gain the
time advantage of a retroactive modification date.â
The court increased the amount of child support from $14,590 per month to
$19,075 per month. As to the start date for this modification, the court stated:
â[Andrew] requested that the child support reach back to the
February 2007 support award. The court will reserve over that start date,
but will not reach back that far. The court is uncertain at this point as to
what the actual amount [Andrew] has now paid [Andrea] for the
community portion of 2007, forward to the extent that there is any
community portion after the 2007 calendar year. At the present time, the
court will start the new child support amount on May 15, 2010, the date
appropriate as a result of the filing date.â
7
The ruling on submitted matter directed Andreaâs counsel to draft an order for the
trial courtâs signature. Andreaâs counsel served a proposed order on October 20, 2010.
The trial court revised the order, signed it, and filed it on December 16, 2010.
On February 7, 2011, Andrew filed his notice of appeal.
DISCUSSION
I. Remarriage
Andrewâs main argument on appeal involves the ceremony which took place on
May 2, 2009, between Andrea and Todd. Andrew argues that the trial court
misinterpreted section 4337 and decisional law in finding that Andrea had not remarried
as that term is used in section 4337. As set forth below, we find that no error occurred.
A. Standard of review
Normally, an order modifying spousal support is reviewed under the deferential
abuse of discretion standard. (In re Marriage of Kerr (1999) 77 Cal.App.4th 87, 93
(Kerr).) However, where the appeal raises a question regarding the proper interpretation
of a statute, or the proper application of the law to uncontested facts, the standard of
review is de novo. (In re Marriage of Campbell (2006) 136 Cal.App.4th 502, 506-507
(Campbell).) We therefore analyze Andrewâs question regarding the proper application
of section 4337, and its application to the facts of this case, de novo.
B. Section 4337 does not apply
Andrew argues that on May 2, 2009, Andrea remarried, thus terminating Andrewâs
support obligations pursuant to section 4337. Section 4337 provides: âExcept as
otherwise agreed by the parties in writing, the obligation of a party under an order for the
support of the other party terminates upon the death of either party or the remarriage of
the other party.â
We begin our analysis by examining the statuteâs words, giving them a plain and
commonsense meaning. (People v. Murphy (2001) 25 Cal.4th 136, 142.) Neither party
argues that the word âremarriage,â as used in the statute, is ambiguous. We find that the
word is clear and unambiguous, and requires entry into a legal marriage.
8
In California, there are several requirements for a valid marriage. The parties
must consent to the marriage; consent must be followed by the issuance of a license; and
the marriage must be solemnized by an authorized person. (§§ 300, 400.) In addition,
the parties must declare, in the presence of the person solemnizing the marriage, that they
take each other as husband and wife. (§ 420.)
The record shows that Andrea and Todd did not become legally married at the
commitment ceremony on May 2, 2009. No marriage license was issued. Rabbi Asa,
who presided over the ceremony, was aware that the parties did not have a marriage
license. Andrea and Todd did not enter into a valid marriage under California law.
Andrew concedes that Andrea and Todd did not enter into a legally valid marriage
under California law.4 However, he argues that section 4337 and its predecessors have
been interpreted to include a ceremony that resembles a valid remarriage -- regardless of
whether the ceremony resulted in a valid marriage. In support of his position, Andrew
cites three cases: Sefton v. Sefton (1955) 45 Cal.2d 872 (Sefton); Berkely v. Berkely
(1969) 269 Cal.App.2d 872 (Berkely); and Fry v. Fry (1970) 5 Cal.App.3d 169, 170-171
(Fry). Andrew argues that these three cases show that it has been clear for decades that a
ceremonial marriage, whether valid, void, or voidable, represents a âremarriageâ as that
term has been used in section 4337 and its predecessors.
In Sefton, the Supreme Court interpreted former Civil Code section 139.5 The
Seftons had obtained a final divorce decree in December 1951, which obligated Mr.
Sefton to pay Mrs. Sefton spousal support until the death or remarriage of Mrs. Sefton.
Mr. Sefton paid the support through June 5, 1953. On June 12, 1953, Mrs. Sefton entered
4
Since it is undisputed that Andrea and Todd did not enter into a legally valid
marriage due to their failure to obtain a marriage license, we decline to discuss the
elements of consent and solemnization.
5
The statute, which was very similar to the current section 4337, provided:
ââExcept as otherwise agreed by the parties in writing, the obligation of any party in any
decree, judgment or order for the support and maintenance of the other party shall
terminate upon the death of the obligor or upon the remarriage of the other party.ââ
(Sefton, supra, 45 Cal.2d at p. 874.)
9
into a ceremonial marriage with Ross C. Marble. Thereafter she commenced an action to
annul her marriage to Mr. Marble, for a species of fraud which would make the marriage
voidable. On June 19, 1953, Mrs. Seftonâs marriage to Mr. Marble was decreed null and
void. (Sefton, supra, 45 Cal.2d at p. 874.) The issue on appeal was âwhether the
annulment decree effectively revived the defendantâs obligation to pay alimony, or
whether Mrs. Seftonâs voidable marriage to Marble was a âremarriageâ within the
meaning of that term as employed in section 139 . . . .â (Ibid.) The court held that when
considering the rights of Mr. Sefton, the annulment decree did not relate back and erase
the marriage. The court reasoned:
âBy the celebration of marriage [Mrs. Sefton] held herself out as
having remarried. The defendant was entitled to rely upon her apparent
marital status after the ceremony. If Mrs. Seftonâs new marriage was
subject to annulment for fraud . . . the marriage would be voidable only.
. . . The divorced spouse, the defendant here, may never know of the
circumstances which make his former wifeâs new marriage voidable. . . .
After the ceremony took place he could properly assume, in accordance
with [Civil Code] section 139 and the property settlement agreement, that
his obligation to pay alimony had ceased. He was then entitled to recommit
his assets previously chargeable to alimony to other purposes. Under such
circumstances it would be improper to reinstate his alimony obligation.â
(Sefton, at pp. 876-877.)
The Sefton case discusses reinstatement of alimony payments after the annulment
of a remarriage. In contrast to the present matter, the defendant had ceased making
payments, and his former wife was suing to have the payments reinstated. There was no
question as to whether the legal requirements of marriage -- including a marriage license
-- had been met. In fact, Mrs. Seftonâs marriage was only considered to be voidable at
the election of one of the parties -- not invalid entirely. Here, in contrast, Andrew seeks
termination of payments on the ground of remarriage, where the parties agree that the
legal requirements of marriage have not been met. In sum, Sefton does not support
Andrewâs position here.
Berkely also involved an action to reinstate payment of alimony after an annulled
remarriage. The plaintiff, Norma Berkley, had remarried a few months after her divorce.
10
About six months later, she received an annulment decree on the ground that a prior
existing marriage of her new husband rendered his marriage to her bigamous and void.
(Berkely, supra, 269 Cal.App.2d at p. 872.) The court declined to reinstate Mr. Berkelyâs
alimony payments. Citing Sefton, the court reasoned that the same holding applies with
equal force to a void marriage (Berkely, at p. 874), and found no persuasive reason to
distinguish between âthe effects upon alimony of a void and a voidable remarriage.â (Id.
at p. 875.) The court noted that a divorcee should be treated âas a responsible person
who must be held to her decision, presumably relied upon by others, to terminate her
right to support from a former husband.â (Ibid.) Here, the parties agree, Andrea made no
decision to legally marry. Her commitment ceremony was not a void or voidable
remarriage -- it was not a marriage at all.
Fry involved facts almost identical to Berkely. The plaintiff, who was receiving
alimony payments from her former husband, entered into a bigamous remarriage which
was later annulled and declared void. The sole question on appeal was whether the
remarriage, later declared void by the court, extinguished the plaintiffâs right to further
alimony. Following the authority of Sefton and Berkely, the Fry court concluded that it
did.
Neither Sefton, Berkely nor Fry involved a situation where, as here, the parties did
not intend to legally marry, did not obtain a marriage license, and purposely did not carry
out the legal requirements of marriage. Contrary to Andrewâs position, these cases do not
stand for the proposition that the term âremarriage,â as used in section 4337, applies to a
ceremony such as the one undertaken by Andrea and Todd.
Andrea points to Campbell which held that the term âremarriage,â as set forth in
section 4337, does not include a supported spouseâs attempt to remarry prior to judgment
dissolving the marriage. In Campbell, the dissolution action of Eric and Rebekah
Campbell was still pending when Rebekah Campbell was remarried in Nevada. The
remarriage, of course, was void, since Rebekah was still married to Eric. (Campbell,
supra, 136 Cal.App.4th at p. 504.) The trial court denied Ericâs motion to terminate
spousal support, and the Court of Appeal agreed, explaining that âa person may never
11
legally remarry prior to dissolution of his or her existing marriage.â (Id. at p. 508.)6
Thus, the Court of Appeal concluded, âit is reasonable to conclude that the Legislature
never expected nor intended that âremarriage,â within the meaning of section 4337, would
encompass an attempted remarriage prior to dissolution of the first marriage.â
(Campbell, at p. 508, fn. omitted.) Similarly, here, it is reasonable to conclude that the
Legislature never intended that the term âremarriage,â within the meaning of section
4337, would encompass a commitment ceremony where the couple intentionally did not
meet the legal requirements of marriage.
Andrew has provided no authority that the term âremarriageâ as used in section
4337 means anything other than a remarriage carried out in conformity with the statutory
requirements. Because Andrea and Todd did not meet those requirements, they did not
marry, and Andrewâs obligation to pay spousal support did not terminate under section
4337.
C. Estoppel
Andrew next argues that even if the commitment ceremony between Andrea and
Todd did not constitute a remarriage under section 4337, Andrea should be estopped to
deny that she remarried. Andrew points to Evidence Code section 623, which provides:
âWhenever a party has, by his own statement or conduct, intentionally and deliberately
led another to believe a particular thing true and to act upon such belief, he is not, in any
litigation arising out of such statement or conduct, permitted to contradict it.â
The doctrine of estoppel has been applied in the family law context. (See In re
Marriage of Valle (1975) 53 Cal.App.3d 837 [applying estoppel doctrine to prevent a
man from denying that he was the father of his brotherâs children].) However, as Andrew
concedes, the estoppel doctrine has not been applied in California to prevent a person
6
In In re Marriage of Seaton (2011) 200 Cal.App.4th 800 (Seaton), which was
published during the pendency of this appeal, the Court of Appeal determined that under
Nevada law, as under California law, a bigamous marriage is ââvoid without any decree
of divorce or annulment or other legal proceedingsâ . . . . [Citation.]â (Id. at p. 807.) We
agree with Andreaâs counselâs statement at oral argument that Seaton does not provide
significant guidance on any of the issues presented in this appeal.
12
from denying the validity of a marriage.7 Nevertheless, Andrew argues that Andrea, who
voluntarily participated in a marriage ceremony, should be held to have relinquished her
right to further support.
In order for estoppel to apply, the complaining party must show: â(1) [t]he party
to be estopped has engaged in blameworthy or inequitable conduct; (2) that conduct
caused or induced the other party to suffer some disadvantage; and (3) equitable
considerations warrant the conclusion that the first party should not be permitted to
exploit the disadvantage he has thus inflicted upon the second party.â (City of Hollister
v. Monterey Ins. Co. (2008) 165 Cal.App.4th 455, 488.) Andrew makes no effort to show
that the elements of estoppel have been met in this case. Instead, he attempts to cast it as
a case of âquasi-estoppel.â Under the concept of quasi-estoppel, Andrew argues, a
showing of actual reliance and disadvantage need not be shown.
In support of his argument that the concept of quasi-estoppel should be
considered, Andrew cites only one California case, Campbell. Andrew argues that the
Campbell court described Sefton and Berkely as applying a quasi-estoppel doctrine when
those courts concluded that the ex-husband was entitled to rely upon the apparent
remarriage of his former spouse. (Campbell, supra, 136 Cal.App.4th at p. 509.) In those
cases, Andrew argues, actual reliance was not a requirement.
While the Campbell court did note that the Sefton and Berkely courts âapplied
what is essentially an estoppel analysisâ (Campbell, supra, 136 Cal.App.4th at p. 509),
we find that the Campbell court did not intend to create a new concept of âquasiestoppelâ as to marriage. We decline to apply this concept under the circumstances
before us.8
7
We decline to discuss the foreign authorities cited by Andrew, as he has failed to
convince us that they should be considered persuasive authority under California law.
8
California courts have accepted a concept of quasi-estoppel, or judicial estoppel,
in limited circumstances. (People ex rel. Sneddon v. Torch Energy Services, Inc. (2002)
102 Cal.App.4th 181, 188-189.) The party invoking judicial estoppel must show that the
party against whom the estoppel is asserted took an inconsistent position in a prior
13
II. Length of marriage
Andrew also argues that the trial court abused its discretion by giving little or no
weight to the short length of the partiesâ marriage. Andrew points out that the parties
were married for only about four and one-half years at the time of their divorce. By the
time of the trial and the December 16, 2010 order, Andrew had been under an obligation
to pay Andrea spousal support for more than half the length of their marriage. Andrew
points out that the trial court specifically noted that the Family Code provides a guideline
which establishes that spousal support should be paid for half the length of the marriage.
The trial court correctly noted that: âThe code provides a guideline, not a hard and
fast rule that support should be paid for half the length of the marriage.â
This guideline is found in section 4320, which provides numerous factors for the
trial court to consider when determining the amount and duration of spousal support.
Among the factors that the court must consider is the duration of the marriage. (§ 4320,
subd. (f).) The section further provides that the trial court shall consider: âThe 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 âreasonable period
of timeâ 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 courtâs 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.â (§ 4336, subd. (l).)9
The parties agree that the trial courtâs decision regarding the amount and duration
of spousal support is subject to the abuse of discretion standard. (Kerr, supra, 77
Cal.App.4th at p. 93 [âIn making its spousal support order, the trial court possesses broad
discretion so as to fairly exercise the weighing process contemplated by section 4320,
judicial or administrative proceeding, and that the position was adopted in the first
tribunal in some manner. (Id. at p. 189.) Andrew makes no effort to show that these
elements have been met.
9
Section 4336 provides that a marriage of 10 years or more is a marriage of long
duration.
14
with the goal of accomplishing substantial justice for the parties in the case before itâ].)
âIn awarding spousal support, the court must consider the mandatory guidelines of
section 4320.â (Kerr, at p. 93, fn. omitted.) However, once it does so, âthe ultimate
decision as to amount and duration of spousal support rests within its broad discretion
and will not be reversed on appeal absent an abuse of that discretion.â (Ibid.) Appellate
courts must act with âcautious judicial restraintâ in reviewing spousal support orders. (In
re Marriage of Ostler & Smith (1990) 223 Cal.App.3d 33, 50.)
The record reveals that the trial court took into consideration the length of the
partiesâ marriage when it made the modified spousal support order. As Andrew points
out, the court specifically noted that the Family Code sets a guideline for spousal support
of a period of one-half the length of the marriage. The court also considered Andreaâs
cohabitation with Todd. Despite its consideration of these two factors, the court
exercised its discretion to continue the spousal support, at a reduced rate. In doing so, the
court considered other factors, as well as the circumstances of the parties, as permitted
under section 4320. Specifically, the court found that there was no competent evidence
that Andrea could be self-supporting, and that Andrew had been slow to pay Andrea the
amounts of community property that he agreed he owed her but still had under his
control. Simply put, the court felt that Andrew could not âwithhold money that rightfully
belongs to [Andrea] and then argue his support should terminate.â Andrew presents no
authority that the courtâs consideration of the failure to turn over community property is
impermissible.10 We find no abuse of discretion in the courtâs decision to continue
spousal support.
10
Andrew argues that section 2550 provides that the community estate of a couple is
normally divided at the time of the judgment of dissolution or at a later time if
jurisdiction to do so is reserved. Here, Andrew argues, because the court reserved
jurisdiction to divide the partiesâ property at a later time, Andrew was not required to
distribute any part of the community property estate to Andrea until division of the entire
estate. Without citation to legal authority, Andrew claims that âthe fact that Andrew did
not distribute the entire amount before trial cannot have been a ground for the trial courtâs
refusal to terminate support.â We decline to accept Andrewâs argument that the trial
court âcannotâ consider the failure to distribute community property which all parties
15
III. Start date for modifications
Andrew filed his OSC regarding termination of spousal support on October 19,
2009. Andrewâs OSC raised various grounds for termination or reduction of spousal
support. Those grounds included Andreaâs alleged remarriage; the length of the marriage
versus the length of time Andrew had been paying spousal support; Andreaâs failure to
make efforts to become self-supporting; and Andreaâs cohabitation with Todd.
On September 14, 2010, the trial court filed its ruling on submitted matter,
reducing the amount of spousal support from $32,547 per month to $20,000 per month.
However, the court made the reduced order effective as of May 15, 2010, instead of
October 19, 2009. The court noted that Andrew did not file an income and expense
declaration (form FL-150) until May 9, 2010. Based on the filing date of Andrewâs form
FL-150, the court stated that it could âonly go back in time to May 15, 2010 in modifying
support. The respondent cannot fail to comply with the courtâs filing requirements and
gain the time advantage of a retroactive modification date.â
Andrew argues that the courtâs failure to make its modification retroactive to
October 19, 2009, resulted in a âwindfallâ to Andrea for the seven-month period of
October 19, 2009 to May 15, 2010. Andrew argues that since the trial court reduced the
support to $20,000 per month, Andreaâs windfall amounted to $87,829 ($32,547 $20,000 x 7).
have agreed belongs to the other spouse. Nothing precludes the trial court from
considering any relevant circumstance, and the trial court âknows much more about the
parties and what constitutes an appropriate duration for spousal support than will ever be
known by a later judge.â (In re Marriage of Prietsch & Calhoun (1987) 190 Cal.App.3d
645, 664.) Further, as Andrea points out, in In re Marriage of Stallcup (1979) 97
Cal.App.3d 294, the Court of Appeal affirmed a trial court decision ordering that spousal
support would continue until the wife received her share of the community property. The
Stallcup court concluded: âGiven husbandâs history of disobedience to court orders, it
was entirely reasonable and within its discretion for the trial court to provide for support
until wife receives all her share of the community property.â (Id. at p. 302.) While the
circumstances in Stallcup were not identical to those in this matter, the case is at odds
with Andrewâs position that this factor cannot be considered by the court.
16
Andrew argues that the courtâs focus on the date of Andrewâs updated income and
expense declaration was error. First, Andrew argues, no statute or rule required Andrew
to file an income and expense declaration with his OSC application. Second, where, as
here, the financial condition of the moving party is not pertinent to a determination of the
relief requested, the moving partyâs failure to provide an income and expense declaration
does not prevent the trial court from granting the relief.
The parties agree that it is within the trial courtâs discretion to make an order
retroactive. Section 4333 states that â[a]n order for spousal support in a proceeding for
dissolution of marriage or for legal separation of the parties may be made retroactive to
the date of filing the notice of motion or order to show cause, or to any subsequent date.â
An order making a modification retroactive to a certain date is reviewed for abuse of
discretion. (In re Marriage of Jacobs (1981) 126 Cal.App.3d 832, 834.)
The rule of court governing income and expense declarations provides that such a
declaration must be filed where it is relevant to the relief requested. California Rules of
Court, rule 5.128(a) provides: âA current Income and Expense Declaration (form FL150) . . . when such form is appropriate . . . must be served and filed by any party
appearing at any hearing at which the court is to determine an issue as to which such
declarations would be relevant. âCurrentâ is defined as being completed within the past
three months providing no facts have changed.â
As Andrew points out, this rule only requires the filing of an income and expense
declaration when it is âappropriateâ and ârelevant.â Andrew argues that the grounds he
asserted for termination and reduction had nothing to do with Andrewâs financial
condition, therefore he was not required to file an income and expense declaration at the
time he filed his OSC in October 2009.
The trial court clearly felt that an income and expense report was relevant to
Andrewâs OSC. At the December 1, 2009 hearing, the court noted that it needed an
updated income and expense report âunder California Rule[s] of Court[, rule] 5.128â
before considering Andrewâs OSC. Under section 4320, ability to pay, and the needs of
the parties, are factors that the court must consider in determining the amount and
17
duration of an order for spousal support. 11 In addition, the court noted in its initial ruling
that it was concerned about Andrewâs failure to consistently pay the amount of support
that he owed, and that Andrew should have already turned over money that both parties
agreed rightfully belonged to Andrea. Under the circumstances, we find no error in the
trial courtâs determination that an income and expense report was relevant, and therefore
required, under the California Rules of Court.12
IV. Reservation of jurisdiction to retroactively modify child support
In its September 14, 2010 ruling on submitted matter, the trial court included
language indicating that it was reserving jurisdiction over the start date of the
modification of its child support order. A reservation of jurisdiction to retroactively
change a support order is impermissible under In re Marriage of Murray (2002) 101
Cal.App.4th 581, 593-594. (See also In re Marriage of Gruen (2011) 191 Cal.App.4th
627, 639-642.) However, in its final order dated December 16, 2010, the court did not
include such language.
11
Andrew argues that section 4320 only governs permanent spousal support orders,
not pendente lite spousal support. Andrew argues that the statue governing pendente lite
spousal support, section 3600, only mentions two of the factors listed in section 4320:
domestic violence and spousal abuse. First, we note that Andrew has relied on the
principles codified in section 4320 in arguing that Andreaâs spousal support should be
terminated because he has paid it for longer than half the marriage. (§ 4320, subd. (f).)
Andrew cannot rely on this statute when it serves him but deny its applicability when it
does not. Further, nothing in section 3600 prevents a trial court from considering the
factors listed in section 4320, including ability to pay -- especially where, as here, the
payor has been inconsistent.
12
Andrew also argues that, because he had a right against self-incrimination in the
contempt proceedings, the trial court made it clear that Andrew would not have to
respond to any financial requests pending the outcome of the contempt proceedings. The
courtâs precise words were: â[Andrew] is not required to respond to any financial issue
OSC until after the resolution of the contempt, okay, that way you can file whatever you
want and she will have her protection, [Andrew] will have his protection.â The courtâs
language was limited to Andrewâs response to a âfinancial issue OSC.â It did not relieve
Andrew of the obligation to file an updated income and expense report in connection with
his own OSC, which he had previously been directed to do.
18
Andrea argues that the courtâs comments in its September 2010 ruling on
submitted matter are of no legal consequence, as that ruling was superseded by the final
order. (See In re Marriage of Ditto (1988) 206 Cal.App.3d 643, 646 [ââ[A] court is not
bound by its statement of intended decision and may enter a wholly different judgment
than that announcedââ].) Andrew concedes that if this court agrees with Andrea, then he
has nothing to challenge.
Because the language in the September 2010 ruling on submitted matter was not
included in the final order of the court, Andrewâs appeal of this issue is unnecessary.
DISPOSITION
The order is affirmed. Each side to bear their own costs on appeal.
CERTIFIED FOR PUBLICATION
____________________________, J.
CHAVEZ
We concur:
_______________________________, P. J.
BOREN
_______________________________, J.
DOI TODD
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