Marriage of Olson



Marriage of Olson


Filed 11/26/07 Marriage of Olson CA4/2


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FOURTH APPELLATE DISTRICT



DIVISION TWO



In re the Marriage of SANDRA AND JOHN G. OLSON.



SANDRA OLSON,


Appellant,


v.


JOHN G. OLSON,


Respondent.



E040814


(Super.Ct.No. RFLRS039088)


OPINION



APPEAL from the Superior Court of San Bernardino County. Janet M. Frangie, Judge. Affirmed.


Law Offices of Tuckerman & Thompson and Daniel W. Rinaldelli for Appellant.


Steven A. Becker for Respondent.


In 1993, when their 28-year-long marriage was dissolved, John Olson was ordered to pay Sandra Olson $6,000 a month in spousal support. In 1998, the trial court increased this to $6,900; at the same time, however, it ordered Sandra to actively seek gainful employment . . . .


In June 2006, the trial court reduced spousal support retroactively for the period from January 2005 through May 2006 to $3,000, terminated spousal support effective June 2006, and terminated its own jurisdiction. It explained that Sandra had not made a good-faith effort to become self-sufficient. It also explained that Sandra was contributing to the support of her adult female roommate and that Johns earnings had decreased. Finally, it further explained that John had a bona fide desire to retire and that, at that point, it was equitable to require both parties to live off of their respective retirement funds (which had been more or less equally divided upon dissolution).


Sandra appeals. We will affirm.


I


FACTUAL AND PROCEDURAL BACKGROUND


A. Original Judgment Awarding Spousal Support.


Sandra and John were married in 1963. In 1991, they separated. Sandra moved out of the family home in Simi Valley and into a house in a house in Moorpark, which she shared with her friend, Patricia Bobo.


Meanwhile, Sandra filed this dissolution action in Ventura County. On October 29, 1993, the Ventura County Superior Court entered a stipulated final judgment. The judgment provided, among other things, that John would pay Sandra $6,000 a month in spousal support.


B. The 1998 Order Increasing Spousal Support.


In 1998, John filed a motion to terminate spousal support or, in the alternative, to reduce spousal support and to give Sandra a Gavron warning.[1] As changed circumstances, he alleged that Sandra and Patricia were in a quasi-marital lesbian relationship. He also alleged that Sandra was able to work, as well as able to generate income by investing her retirement funds.


Sandra filed a responsive declaration requesting an increase in spousal support. As changed circumstances, she alleged that, since the entry of the initial judgment for spousal support, the cost of living had increased. She also alleged that her current living standard was below the marital living standard. She claimed that she had made an effort to find employment, but without success: My age in combination with my lack of education and marketable skills has made it impossible for me to obtain employment that would enable me to become self-supporting. She also claimed that she should not have to withdraw her retirement funds and that she could not do so without incurring a penalty. She denied having a sexual or quasi-marital relationship with Patricia.


On November 3, 1998, the Ventura County Superior Court ordered spousal support increased to $6,900 a month. It found that the cost of living had increased. It also found that Johns income had increased at least 15 percent. It found that Patricia was not contributing to Sandras support; however, it did not find (and apparently was not asked to find) whether Sandra was contributing to Patricias support.


It refused to impute any income to Sandra. It stated: This is a marriage of nearly 28 years during which [Sandra] was employed no more than four years. She does not have a college degree and has no specialized work skills. Additionally, she is now 55 years old, an age at which even experienced workers with long work histories are finding themselves downsized from their employment. While it is certainly possible for [Sandra] to have some employment and contribute to her own upkeep, it seems virtually impossible for her to be self-supporting at this age, and certainly not at the marital standard of living. However, it also stated: As requested the Court issues a Gavron warning to [Sandra] and directs that she must continue to actively seek gainful employment as long as [John] is gainfully employed.


C. The 2006 Order Reducing and Then Terminating Spousal Support.


In April 2003, John filed an order to show cause (OSC) in the Ventura County Superior Court, once again requesting that spousal support be terminated. As changed circumstances, he alleged that: (1) Sandra had been given a Gavron warning but had not obtained employment; (2) Sandra was contributing to Patricias support; (3) Sandra had turned 60 and therefore was able to draw on her retirement funds without penalty; (4) his income had decreased; and (5) he intended to retire, which would further reduce his income.


Once again, Sandra filed a responsive declaration requesting an increase in spousal support (although she did not allege any relevant change of circumstances).


Meanwhile, sometime after 1998, John had moved to Upland. Sandra and Patricia had moved to Nevada and had established legal residency there. In 2000, however, they had purchased a second home in Cathedral City. Thus, in August 2003, on Johns motion, the case was transferred to the San Bernardino County Superior Court.


In 2005, the trial court held an evidentiary hearing. On June 21, 2006, it ordered that spousal support be reduced to $3,000 a month as of January 1, 2005, and terminate as of May 31, 2006. It also terminated its jurisdiction, as of May 31, 2006. It made the following findings:


1. Sandra had been given a Gavron warning but had not made good faith efforts to become self-sufficient . . . . At the time [of the Gavron warning], [Sandra] was 55 years old and had potentially at least ten more years ahead of her in the work force before retirement age. . . . She did essentially nothing to become retrained (if required), sharpen her skills or find full[‑]time regular []employment in any field to which [her] skills could have applied. . . . The Court does not agree that [Sandra] is without marketable skills. With the exception of a couple of weeks, she has not been gainfully employed since 1998. No satisfactory reason was given to the Court as to why this was so.


2. There was no credible evidence that Sandra and Patricia had a sexual or romantic relationship.


3. Sandra was contributing to Patricias support. The support of [Patricia] is not [John]s responsibility. That was never the intent of the spousal support laws nor is [John] legally obligated to continue to pay support to [Sandra] that will benefit [Patricia]. It is equally clear that if [Sandra] was not supporting [Patricia] she would have substantially less monthly expenses.


4. Johns earnings had decreased. The trial court noted that the findings in the 1998 order concerning the marital standard of living had been based on John having a gross monthly income of over $18,000 at the time of the dissolution, and of over $21,000 in 1998. [John] no longer has that type of income so he too is unable to live at the marital standard of living. [N]either party is able to live at the former marital standard of living.


5. John had a bona fide desire to retire in the near future. Upon retirement, [John] will be placed in the same position as [Sandra] as it respects their retirement funds. There is no inequity in that.


6. Sandra had suffered some investment losses in her retirement accounts, but this was not the result of imprudent investment decisions on her part.


7. Sandra had gained the ability to withdraw money from her retirement funds without penalty. The trial court also found that Sandra had already made some withdrawals from her retirement funds; however, . . . the purpose of the retirement [funds] was for use during her retirement years and not to supplement a standard of living that included the support of [Patricia] (including travel and entertainment) and to support a gambling habit with losses greater than many individuals earn in one year. The balance of [Sandra]s retirement fund along with income from employment should she choose to work is sufficient to meet [Sandra]s needs[,] to the exclusion of [Patricia], in the future.


II


DISCUSSION


A. General Legal Principles.


In determining the amount of spousal support, the trial court must consider a list of specified circumstances. The only circumstances even arguably relevant here are:


(a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage . . . . [] . . . []


(b) The extent to which the supported party contributed to the attainment of . . . a career position . . . by the supporting party.


(c) The ability of the supporting party to pay spousal support . . . .


(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 . . . .


(h) The age and health of the parties. [] . . . []


(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. . . . [] . . . []


(n) Any other factors the court determines are just and equitable. (Fam. Code,  4320.)


A spousal support order is modifiable only upon a material change of circumstances since the last order. Change of circumstances means a reduction or increase in the supporting spouses ability to pay and/or an increase or decrease in the supported spouses needs. (In re Marriage of West (2007) 152 Cal.App.4th 240, 246.) A trial court considering whether to modify a spousal support order considers the same criteria set forth in Family Code section 4320 as it considered in making the initial order. [Citation.] (Id. at p. 247.)


The modification of a spousal support order is reviewed on appeal for abuse of discretion. In exercising its discretion the trial court must follow established legal principles and base its findings on substantial evidence. [Fn. omitted.] If the trial court conforms to these requirements its order will be upheld whether or not the appellate court agrees with it or would make the same order if it were a trial court. [Citation.] (In re Marriage of West, supra, 152 Cal.App.4th at p. 246, quoting In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 47.)


B. Sandras Failure to Make a Good-Faith Effort to Become Self-Sufficient.


Sandra contends that the trial court erred by reducing or terminating spousal support based, in part, on her failure to attempt to become self-supporting.


[A] material change of circumstances warranting a modification of spousal support may stem from unrealized expectations embodied in the previous order. [Citation.] Specifically, changed expectations pertaining to the ability of a supported spouse to become self-supporting may constitute a change of circumstances warranting a modification of spousal support. [Citation.] Thus, if a courts initial spousal support award contemplates that a supported spouse will take some action to decrease the need for spousal support following the issuance of the order and the supported spouse fails to take that action, the court may modify the award on the ground of changed circumstances. [Citation.] (In re Marriage of West, supra, 152 Cal.App.4th at p. 247, quoting In re Marriage of Shaughnessy (2006) 139 Cal.App.4th 1225, 1238.)


Under In re Marriage of Gavron, supra, 203 Cal.App.3d 705, after a lengthy marriage, the trial court must give an appropriate warning before it can reduce or terminate spousal support based on the supported spouses failure to make at least good-faith efforts to become self-sufficient. (Id. at p. 712; see also Fam. Code,  4330, subd. (b) [[w]hen making an order for spousal support, the court may advise the recipient of support that he or she should make reasonable efforts to assist in providing for his or her support needs].) Here, at Johns request, the 1998 order did include a Gavron warning.


Sandra now argues that the 1998 order was contradictory and inadequate because, at the same time as it direct[ed] her to actively seek gainful employment, it also found that it was virtually impossible for her to be self-supporting . . . . The actual wording of the 1998 order, however, was that it appears virtually impossible for her to be self-supporting . . . , although it is possible for [Sandra] to have some employment and contribute to her own upkeep. (Italics added.) Thus, there was no inconsistency. The 1998 order explicitly presumed that Sandra would be able to support herself partially, but not totally; it directed her to seek employment nevertheless.


She also claims there was absolutely no evidence proffered at trial by John to suggest that Sandra understood her obligations under the . . . Gavron warning. Absolutely no testimony in this regard was solicited or explored. (Capitalization altered.) The very fact that the warning was given to an English-speaking adult with intact faculties constitutes such evidence. In addition, however, under questioning by Johns counsel, Sandra testified:


Q Now, you recall in 1998 that you were told by the Court that you had a responsibility to use your best efforts to work and contribute to your own support; is that correct?


A I was given a Gavron warning. I was imputed no income earning ability, but I was asked to seek employment. Not to gainfully get it but to seek it, yes.


Thus, the statement in Sandras brief that there was absolutely no [such] evidence is less than candid.


Sandra does not appear to argue that there was insufficient evidence to support the trial courts finding that she has not made good faith efforts to become self sufficient since the Gavron warning was given. It is true that, in a footnote, she claims direct evidence was presented that [she] was applying regularly for jobs. Also, in her statement of facts, she asserts that since 1998, she had submitted numerous applications for employment . . . . This does not constitute a cognizable insufficiency of the evidence contention, however, because Sandra fails to cite (Cal. Rules of Court, rule 8.204(a)(1)(C)) or to discuss (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881-882) all of the relevant evidence.[2] Significantly, she also does not discuss the trial courts finding that she had not tried to obtain additional training or education to make herself more employable. In the absence of an adequate summary of the trial record, we deem the[] evidentiary challenge waived and presume the evidence supports the trial courts findings. [Citation.] (Benson v. Kwikset Corp. (2007) 152 Cal.App.4th 1254, 1273.)


Sandra does argue, however, that the trial courts findings conflict with findings made in the 1998 order. Specifically, she challenges its findings that, as of 1998, she had potentially at least ten more years ahead of her in the work force before retirement age, and that she had marketable skills. The 1998 order had stated that [Sandra] has no college degree or specialized work skills . . . . (Italics added.) This was not inconsistent with the trial courts finding that she had marketable work skills. Similarly, as noted earlier, the 1998 order had stated, it appears virtually impossible for her to be self-supporting . . . , although it is possible for [Sandra] to have some employment and contribute to her own upkeep. (Italics added.) This was not inconsistent with the trial courts finding that she could have joined the work force in 1998. Indeed, from the very fact that the 1998 order included a Gavron warning, this finding necessarily follows.


We therefore conclude that the trial court properly considered Sandras failure to try to become even partially self-supporting.


C. Sandras Contribution to Patricias Support.


Sandra contends that the trial court erred by reducing or terminating spousal support based, in part, on the fact that she was contributing to Patricias support. She does not claim that there was insufficient evidence to support this finding; she merely argues that it was legally irrelevant.


The trial court was required to consider [t]he needs of each party based on the standard of living established during the marriage. (Fam. Code,  4320, subd. (d).) During the marriage, Sandra was not contributing to Patricias support. It is almost tautological, then, that such contributions were not part of the relevant needs. Moreover, to the extent that Sandra was willing and able to divert some of the spousal support that she received to support Patricia, it was fair to infer that Sandra no longer needed that spousal support.


We find some helpful authority in In re Marriage of Serna (2000) 85 Cal.App.4th 482. There, in setting spousal support, the trial court specifically considered the fact that the supported spouse was, in turn, supporting two of the couples adult children. (Id. at p. 485.) The appellate court held that this was an abuse of discretion. (Id. at pp. 487-493.) It explained that adult child support cannot be indirectly awarded under the guise of spousal support. (Id. at p. 487.)


Admittedly, Serna distinguished adult child support from charitable giving. (In re Marriage of Serna, supra, 85 Cal.App.4th at pp. 491-492.) While noting that the question of charitable giving generally as a factor in determining spousal support is beyond this opinion, it suggested that, under some circumstances, charitable giving during the marriage could be considered an element of a spouses needs (although under other circumstances, it could not). (Id. at p. 492, fn. 10.) Here, Sandras support of Patricia seems more closely analogous to the support of an adult child than to charitable giving in general. As the trial court observed: The support of [Patricia] is not [John]s responsibility. That was never the intent of the spousal support laws nor is [John] legally obligated to continue to pay support to [Sandra] that will benefit [Patricia]. We cannot say that this was an abuse of discretion.


D. Sandras Gambling.


Sandra contends that the trial court erred by reducing or terminating spousal support based, in part, on her gambling.


1. Additional factual and procedural background.


The 1998 order stated: [Sandra] is entitled as a matter of law to live at . . . the marital standard of living[, which] can be judged . . . by the fact that the parties during marriage had substantial accumulated assets, second homes, vacation vehicles, and expensive hobbies such as gambling. (Italics added.) Sandra testified that she and John gambled in Nevada throughout the marriage.


After separation, Sandra played video poker at Nevada casinos. In 1998, her reported gambling income was $28,475; in 1999, $23,816; in 2000, $153,271; in 2001, $19,656; and in 2002, $13,600. Each year, she reported identical amounts of gambling losses. As Johns expert testified, legally, gambling losses are deductible up to, but not exceeding, gambling winnings.


Sandra testified that her gambling winnings and losses were [b]asically . . . a wash. Her testimony was ambiguous, however, with respect to whether she meant they were equal as a factual matter or simply as a matter of tax law.


2. Analysis.


Sandra mischaracterizes the role that her gambling played in the trial courts analysis. The trial court did not simplistically reduce or terminate spousal support just because she gambled. Rather, it ruled that it was equitable to require both parties to start living off their retirement funds and therefore to terminate spousal support. It reasoned, in part, that this was equitable, even though Sandras retirement accounts were worth less than Johns, partly because Sandra had chosen to draw them down prematurely to supplement [her] standard of living . . . . In that context, it noted that this supplemented standard of living included gambling. Taken as a whole, this reasoning was not an abuse of discretion.


Sandra argues that she and John had both gambled during the marriage, and therefore gambling constituted part of her needs . . . based on the standard of living established during the marriage. (Fam. Code,  4320, subd. (d).) However, the marital standard of living is only one factor relevant to the determination of need. [Citations.] (1 Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2007)  6:891, p. 6‑319.) [N]either the Legislature nor any judicial decision has directed that spousal support must always meet the supported spouses need as measured by the marital standard of living. Indeed, it is typically impossible postseparation for either party to have sufficient funds to continue in the lifestyle enjoyed during marriage - i.e., it costs more to maintain two households than one . . . . [Citations.] (Ibid.) Moreover, the marital standard of living has diminishing significance with the postseparation passage of time. (Id., at  6:967, p. 6‑347; see also In re Marriage of Rising (1999) 76 Cal.App.4th 472, 478, fn. 9.) Here, the trial court specifically found that neither party is able to live at the former marital standard of living and that [John] no longer has the ability to pay [Sandra] spousal support at the marital standard of living. Some of both parties former needs had to go.


Sandra also argues that there was insufficient evidence that she had any gambling losses ‑‑ much less, as the trial court found, losses greater than many individuals earn in one year. The evidence of the amounts of her winnings and losses came from her tax returns. As a matter of tax law, she had to report the full amount of her winnings, but not the full amount of her losses. In most years, her winnings ranged between $13,000 and $30,000; the exact amounts of her losses are unknown. However, in the one year when she won $153,271, she also lost at least this amount. It is fairly inferable that, in the other years, her losses were actually greater than her winnings. Sandras ambiguous testimony, if taken to mean that she had no net losses at all, was not credible; the laws of probability (and the viability of the casino industry) demand that a person playing video poker regularly for seven years must lose money.


We therefore conclude that the trial court did not abuse its discretion in its consideration of Sandras gambling losses.


E. Decrease in Johns Income.


Sandra contends that the trial court erred by reducing or terminating spousal support based, in part, on a finding that Johns income had decreased.


1. Additional factual and procedural background.


The 1998 order stated: [S]ince the initial spousal support order was made, [John]s gross income has increased at least 15% . . . . [] . . . At the time of dissolution the spousal support order did not permit [Sandra] . . . to live at the marital standard of living, although, presumably, other [as]sets in the property settlement did so. [] . . . [Sandra] is entitled, as a matter of law, to live at that standard of living[,] which can be judged . . . by [John]s gross income of $18,600 per month at the time of dissolution . . . . (Italics added.)


John was a commissioned salesman. In 2003, his gross commission income was approximately $180,000.[3] In 2004, his gross commission income was approximately $177,000. In 2005, his gross commission income was approximately $185,500.


John testified that he was working longer hours than in 1998 but making less money. His income had gone down due to . . . globalization of companies taking product to China rather than having it done here and because a couple of his customers had gone bankrupt.


Johns expert testified that Johns only source of income was his employment, unless he chose to withdraw money from a tax-deferred retirement account.


2. Analysis.


We must sustain the trial courts finding if it is based on substantial evidence. (In re Marriage of West, supra, 152 Cal.App.4th at p. 246.) When a trial courts factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. [Citation.] (Lammers v. Superior Court (2000) 83 Cal.App.4th 1309, 1317, fn. 4, quoting Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.)


The 1998 order recited that Johns income at the time of the dissolution had been $18,600 per month, and that since then his income had increased by 15 percent. This would indicate a 1998 income of $21,390 per month. Johns expert testified that this was what it meant, and the trial court so found. Moreover, the trial court took judicial notice of an income and expense declaration that John had filed in 1998. In it, John stated that his gross income was $21,331 a month. These figures would indicate an annual income in 1998 of about $256,000. Obviously, this is considerably more than Johns annual income in 2003 through 2005 of approximately $180,000.


Sandra argues vigorously that Johns income was $18,600 per month in 1998, rather than at the time of the dissolution. This argument finds no support in the record. She points to a declaration John signed, stating, in part, The last order in this matter was based on my having an income of $18,600 per month . . . . In the face of the actual terms of the order itself, however, Johns characterization of the order is not substantial evidence. Even if it were, the trial court could properly rely on the order itself. Incidentally, even assuming Johns income in 1998 really was $18,600 a month, that would be the equivalent of $223,200 a year; thus, the trial courts finding that his income had decreased would still be supported by substantial evidence.


Sandra therefore also argues that the trial court improperly disregarded Johns investment income. Johns only investment income, however, was from tax-deferred retirement accounts. After John turned 59 1/2 years old (i.e., in September 2002), he could make withdrawals from these accounts without any penalty; however, the withdrawals would be regarded as income for tax purposes.


What is key here is that Johns retirement funds had been divided between the parties; in fact, Sandra got a slightly larger share than John did. If and when John retires, his income will consist mainly of the income (plus any principal he may choose to withdraw) from his share of the retirement funds. At that point, unless Sandra gets a job, her income likewise will consist mainly of the income (plus any principal she may choose to withdraw) from her share of the retirement funds. There will be no reason to require either party to support the other.


It is true that, after September 2002, John was able to withdraw his retirement funds, while still working. In fact, he admitted doing so ‑‑ to make support payments to Sandra and to pay his attorney fees, as well as to buy a motor home. Nevertheless, he was reducing his future retirement income (and incurring a present tax liability). In essence, he was borrowing from himself. Johns expert testified that, for these reasons, treating the withdrawals as income would be double count[ing]. The trial court could reasonably conclude that Johns premature consumption of these assets should not be treated as current income available for support.


We therefore conclude that the trial court properly found that Johns income had decreased, and it properly relied on this as a reason to order reduced spousal support.


F. Johns Intent to Retire.


Sandra contends that the trial court erred by reducing or terminating spousal support based, in part, on Johns intent to retire. She argues that, unless and until John actually retires, there has been no relevant change of circumstances.


[I]n the instance of a bona fide retirement, a supporting spouse should not be forced to continue working. Under those circumstances, the trial court may determine that there has been a material change in circumstances to justify a modification of support. [Citations.] Just as a married couple may expect a reduction in income due to retirement, a divorced spouse cannot expect to receive the same high level of support after the supporting spouse retires. (In re Marriage of Reynolds (1998) 63 Cal.App.4th 1373, 1379 [Fourth Dist., Div. Two].)


We see no reason why, as a matter of law or policy, the supporting spouse should be required to actually retire before requesting a decrease in spousal support. As the trial court observed,  . . . I dont think its reasonable for him to ‑‑ for any party to have to retire first, take the risk that he wont be able to pay the level of support that is in the current order and then wait for a trial which could be, what, this has been two years since the OSC was filed[,] and then to be ‑‑ to be put at risk for a support order he . . . cant pay and be held in contempt[;] I think its very reasonable for a person to say, okay, Im going to retire on this date if I can, if my support obligations allow me to do so.


Sandra cites cases holding that a supporting spouse cannot retire prematurely in order to avoid paying spousal support. [Citations.] (In re Marriage of Reynolds, supra, 63 Cal.App.4th at p. 1379; accord, In re Marriage of Sinks (1988) 204 Cal.App.3d 586, 594.) However, there was no evidence that Johns intent to retire was either premature or not bona fide. When asked why he wanted to retire, John testified, Im tired. [T]heres some health issues with my wife. Were raising two grandchildren. . . . Id like to enjoy some years of leisure . . . . [N]one of us like to look at what weve done for our lifetimes and see a business pass us by, but . . . I think to a certain extent thats happened to me. And Im not able to open up new accounts the way that I was 10, 15, 20 years ago.


We therefore conclude that the trial court could and did properly consider Johns intent to retire.


G. Termination of Jurisdiction.


Sandra contends that there was insufficient evidence to support the trial courts order terminating its jurisdiction.


A trial court should not terminate jurisdiction to extend a future support order after a lengthy marriage, unless the record clearly indicates that the supported spouse will be able to adequately meet his or her financial needs at the time selected for termination of jurisdiction. In making its decision concerning the retention of jurisdiction, the court must rely only on the evidence in the record and the reasonable inferences to be drawn therefrom. It must not engage in speculation. If the record does not contain evidence of the supported spouses ability to meet his or her future needs, the court should not burn its bridges and fail to retain jurisdiction. [Citation.] (In re Marriage of Morrison (1978) 20 Cal.3d 437, 453, quoting In re Marriage of Dennis (1973) 35 Cal.App.3d 279, 285.)


These standards will not require a trial court to retain jurisdiction in every case involving a lengthy marriage. In some instances the record will indicate that both spouses are employed . . . or that there are sufficient assets available to enable each to provide for his or her needs. In that event, no support or support for only a limited time, without a retention of jurisdiction, would be appropriate. [Citations.] (In re Marriage of Morrison, supra, 20 Cal.3d at p. 453.)


Sandra argues that the record did not clearly indicate that she would be self-supporting by May 31, 2006. She seems to mean that there was insufficient evidence that she would be self-supporting by means of employment. Even so assuming, however, there was sufficient evidence that she and John would each be self-supporting by means of their respective retirement funds. As we discussed in part II.E.2, ante, given the fact that, upon dissolution, Johns retirement funds were divided more or less equally between the parties, the trial court could reasonably conclude that John should not be required to support Sandra after he retired. Moreover, as we discussed in part II.D.2, ante, it could also reasonably conclude this was equitable even though Sandra had chosen to draw down her retirement accounts to fund an enhanced present living standard. Whether Sandra could or could not find work was largely irrelevant to this reasoning (although it was relevant to support the trial courts order reducing support from January 1, 2005 through May 31, 2006).


Admittedly, the trial court seems to have believed that Sandra might need to work, even after John had retired. For example, it stated, If [Sandra] is unable to retire without the need to work, she has only herself to blame. Similarly, it stated, The balance of [Sandra]s retirement fund along with income from employment should she choose to work is sufficient to meet [her] needs . . . in the future. (Italics added.) Nevertheless, because there was sufficient evidence that Sandra was employable and would be able to generate at least some employment income, the trial court could reasonably find that she would be able to meet her future needs without any support from John.


III


DISPOSITION


The order appealed from is affirmed. In the interests of justice, neither party is awarded costs on appeal. (See Cal. Rules of Court, rule 8.276(a)(3)-(4).)


NOT TO BE PUBLISHED IN OFFICIAL REPORTS


RICHLI


J.


We concur:


HOLLENHORST


Acting P.J.


GAUT


J.


Publication Courtesy of California attorney referral.


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[1] A Gavron warning tells the supported spouse that he or she is expected to become self-sufficient after an appropriate period of time, and if he or she fails to do so, spousal support may be reduced or terminated. (In re Marriage of Gavron (1988) 203 Cal.App.3d 705, 712.)


[2] The cited pages of the reporters transcript showed that in 2002, Sandra worked as a copy tech and microfiche sales rep, but that job lasted less than a month, because a foot problem prevented her from standing at a copy machine for eight hours a day . . . . In 2004, she had applied for a job as a receptionist, and in 2005, she had applied for several medical receptionist positions, as well as for jobs with Federal Express, the post office, and Morongo Casino, and in sales. Thus, aside from the ephemeral 2002 job, there was no evidence of any particular employment applications from 1998 through sometime in 2004 (when the trial was looming).


[3] Sandras brief states: Essentially, and with only minor discrepancies, the evidence established that John had available an average income for year 2003 of approximately $208,284.00 in earned compensation commission. (RT 353) (Italics added; capitalization altered.) That is false. The cited page of the reporters transcript indicates that Johns total taxable income for 2003, consisting of commission income plus IRA withdrawals, was $208,384. We will discuss the relevance of the IRA withdrawals further below.



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