Marriage of Schmir

Filed 5/19/08 Marriage of Schmir CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from an order of the Superior Court of Los Angeles County, Maren E. Nelson, Temporary Judge. (Pursuant to Cal. Const., art VI,   21.) Affirmed.

Butler, Buzard, Dunaetz & Fishbein and Glenn S. Buzard for Appellant.

No appearance for Respondent.

________________________

Maurice Schmir appeals from the trial courts post-judgment order terminating his obligation to pay spousal support to his former wife, Judy Schmir, but refusing to reduce support for the period prior to May 3, 2006, the date on which Maurice[1]filed his application for an order to show cause following issuance of the remittitur in the parties prior appeal on the issue of spousal support. (In re Marriage of Schmir (2005) 134 Cal.App.4th 43 (Schmir I).) Maurice contends the trial court erred in concluding, under both Family Code section 3653[2]and our directions on remand in Schmir I, it was not authorized to make its order terminating support retroactive to a date prior to the filing of his application (and specifically to October 2003 when Judy concedes she ceased to make any effort to become employed). We affirm.[3]

FACTUAL AND PROCEDURAL BACKGROUND

1. The Original Support Order

Judy and Maurice married in 1964 and separated 23 years later in 1987. In 1989 their marriage was dissolved by a judgment based on a marital settlement agreement. The judgment provided, in part, Maurice would pay Judy spousal support in the sum of $5,800 per month until the death of either party, Judys remarriage or further order of the court. The judgment recited Judy had no present employment or professional income and had unreimbursed medical expenses of approximately $2,000 per month. Neither the settlement agreement nor the judgment contained a Richmond order (see In re Marriage of Richmond (1980) 105 Cal.App.3d 352, 356), terminating spousal support jurisdiction as of a specific date, or a Gavron warning (see In re Marriage of Gavron (1988) 203 Cal.App.3d 705, 712 (Gavron)), advising Judy she needed to make reasonable efforts to assist in providing for her support needs or face reduction or termination of support. (See generally 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 . . . unless, in the case of a marriage of long duration as provided for in Section 4336, the court decides this warning is inadvisable].)[4]

2. Maurices Initial Request To Modify or Terminate Support

Maurice made the agreed-upon payments without objection until January 2003, when he sought an order modifying or terminating Judys support. Maurice alleged three changes in Judys circumstances justified reducing Judys spousal support: (1) Judy had returned to work; (2) Judy had reached the age when she could draw on her individual retirement account (IRA) without penalty; and (3) there had been a reduction in Judys unreimbursed medical expenses. In June 2003 the court ordered Judys support reduced to $2,000 per month on an interim basis pending a further hearing on the matter.

Following discovery and a hearing with live testimony on October 7, 2003, the trial court granted Maurices request and ordered Judys support reduced to zero as of November 1, 2003, declining to make the order retroactive to the date of filing of Maurices request for an order to show cause. The court retained jurisdiction over the issue of spousal support for Judy until the death of either party, Judys remarriage or further court order.

In its statement of decision regarding modification of spousal support, which was not filed until March 5, 2004, the trial court found Judy is employable at a gross salary of $2,500 per month, and the Court has imputed this income to [Judy]. The statement of decision also provides, It is appropriate under the facts and circumstances of this case that the Court issue a[n] express Gavron warning to [Judy]. Pursuant to Family Code,  4330, and after taking into account the circumstances considered by the Court pursuant to Family Code 4320,[[5]] [Judy] is advised that she should make reasonable efforts to assist in providing for her own support needs.

3. Schmir I

Judy appealed. In an opinion filed on November 16, 2005 we held substantial evidence supported the trial courts finding of a change in circumstances based on Judys present ability to earn income as a licensed clinical social worker (LCSW), work she had done prior to experiencing the life altering stressors relating to the termination of her marriage, concluding, There is substantial evidence in the record from which the trial court could find these life altering stressors no longer interfered with Judys ability to practice her profession.[6] (Schmir I, supra, 134 Cal.App.4th at p. 48.) We also found substantial evidence supported a change in circumstances based on a reduction in Judys monthly medical needs, as well as her ability to make withdrawals from her IRA without penalty. (Id. at pp. 50-51.) We then held the trial court had not abused its discretion in requiring Judy to make up any shortfall in her monthly living expenses from her IRA (id. at pp. 51-53), and the trial courts imputation of $2,500 per month in employment income was supported by substantial evidence. (Id. at p. 53.)

Although thus affirming much of the trial courts order, however, we held the court had abused its discretion in imputing income to Judy and terminating all spousal support without providing reasonable advance notice and an adequate opportunity to secure employment as required by Gavron, supra, 203 Cal.App.3d at page 712: How much advance warning is reasonable obviously depends on the circumstances of each case. Spouses who need further education or training to become employable will usually need more advance warning than spouses who already possess job skills and only need to find suitable work. It is not possible to set a minimum or maximum warning time. [] In the present case, however, three weeks notice [from October 7, 2003 to November 1, 2003] was clearly too short . . . . The fact Judy had the present ability to earn income as an LCSW did not mean she had the ability to earn instantly. If Judy was going to work for an organization, as the vocational evaluators assumed, at a minimum she would need to prepare resumes, identify potential employers and go on job interviews. If, on the other hand, Judy was going to be a self-employed therapist, as she had been when she last practiced her profession, at a minimum she would need to arrange office space in her home or elsewhere, set up bookkeeping and appointment systems and build up a client base. [] [Accordingly,] we conclude the trial court abused its discretion in terminating Judys spousal support without affording her a reasonable advance notice and opportunity to find gainful employment. (Schmir I, supra, 134 Cal.App.4th at p. 58.)

Turning to the question of remedy for the trial courts error in failing to give Judy adequate notice of her obligation to provide for own support, we held fairness requires (1) Judys support be returned to the amount of $5,800 per month retroactive to June 2003 (when the trial court ordered the reduction in her support to $2,000 per month) and (2) Judys support continue at the rate of $5,800 per month from June 2003 to such time as Judy obtains employment at the rate of at least $2,500 per month or ceases to make a good faith effort to obtain such employment . . . . At the request of Maurice the trial court shall conduct a hearing to determine whether Judy is making a good faith effort to earn at least $2,500 per month. Such hearings, however, shall occur no more frequently than every three months. (Schmir I, supra, 134 Cal.App.4th at p. 58.) Our disposition reversed the June 2003 interim order to the extent it reduced Judys support from $5,800 per month to $2,000 per month and modified the March 2004 order (that is, the order following the October 7, 2003 hearing) to provide Judys support would continue at the rate of $5,800 per month until she obtained employment at the specified level or ceased to make a good faith effort to do so. In all other respects the March 2004 order was affirmed. (Id. at p. 59.)[7]

4. Maurices Petition for Rehearing and Petition for Review

Following our November 16, 2005 decision affirming in part and reversing in part the trial courts March 2004 order, Maurice promptly filed a petition for rehearing. In addition to other challenges to our opinion, Maurice explained the remedy we had articulated for the trial courts failure to give Judy adequate notice of her responsibility to provide for her own support called for future hearings on whether Judy was making a good faith effort to earn at least $2,500, but failed to permit any examination of what Judy had done up to the time of our decision to obtain employment even though Judy had been warned at the hearing on October 7, 2003 and again in the trial courts order of March 2004 it was now her obligation to obtain employment. Our opinion, Maurice complained, does not provide for a retroactive reduction in amount of support in the event that Judy has not made satisfactory efforts to obtain employment [between October 2003 and the date of any future hearing]. We denied the petition for rehearing without any modification of our original opinion on December 9, 2005.

Maurices petition for review in the California Supreme Court, filed December 23, 2005, was denied on February 8, 2006. The decision in Schmir I having become final, on March 1, 2006 the clerk of our court issued the remittitur to the Los Angeles Superior Court.

5. Maurices May 2006 Request To Terminate Support

During the pendency of Judys appeal, Maurice paid no support. On May 3, 2006 Maurice filed a new request to terminate Judys spousal support retroactive to October 7, 2003 when she first received a Gavron warning from the trial court, advising her it was her responsibility to provide for her own support. In his declaration Maurice averred, I do not believe that [Judy] will be able to demonstrate that she has made a good faith effort to become employed since October 7, 2003. I am requesting that my spousal support obligation be reduced to zero as of that date . . . .

Judy was deposed on July 14, 2006 and acknowledged she had made no efforts to obtain employment since October 7, 2003 and, in fact, had allowed her license as a social worker to lapse. She also testified she had not attempted to retrain herself in order to find any other type of work.

In response to Maurices request for relief, Judy conceded, in light of her decision not to seek employment, her support was properly reduced to zero. However, she argued the court did not have the authority to order that reduction effective as of a date prior to the filing of Maurices new request for relief under section 3653, which provides an order modifying or terminating a support order may be made retroactive to the date of the filing of the notice of motion or order to show cause, but not earlier, as well as our instructions to the trial court requiring the review procedure specified in our opinion be followed before her support could be reduced. The trial court agreed, reducing Judys support to zero, effective May 3, 2006.

On December 19, 2006 Maurice filed a motion to clarify the ruling or, in the alternative, to reconsider and set aside the trial courts December 1, 2006 order and to enter a new order and findings. The court denied that motion on January 23, 2007. On January 29, 2007 Maurice filed his notice of appeal.

CONTENTIONS

Maurice contends, because our November 16, 2005 decision modified, rather than reversed, the trial courts March 23, 2004 order terminating Judys spousal support, we created a support order for a contingent period under section 4334, subdivision (a),[8]that related back to October 7, 2003, and Maurices support obligation pursuant to that order ceased upon Judys failure to make a good faith effort to obtain employment. Alternatively, Maurice contends the consequences of our prior decision under the circumstance of this case create an unanticipated but substantial injustice that we should now correct to avoid a harsh, inequitable, and manifestly unjust result.

DISCUSSION

1. Absent a Court Determination Judy Was Not Making a Good Faith Effort To Become Employed, Maurice Was Obligated To Continue Making Support Payments

As we explained in Schmir I, the Court of Appeal in Gavron, supra, 203 Cal.App.3d 705 held a supported spouses failure to at least make good-faith efforts to become self-supporting could constitute a change of circumstances sufficient to warrant a modification of support only when there was reasonable advance warning that after an appropriate period of time the supported spouse was expected to become self-sufficient or face onerous legal and financial consequences. (Gavron, at p. 712; see Schmir I, supra, 134 Cal.App.4th at p. 55 & fn. 26.) Although we affirmed the trial courts finding that Judy was now capable of earning a monthly income of at least $2,500, we held that her spousal support could not be terminated without advance notice and that giving a Gavron warning on October 7, 2003 and terminating support three weeks later on November 1, 2003 was an abuse of discretion. (Schmit I, at p. 58.) Notwithstanding this express holding, Maurice now audaciously argues Judys support should be terminated on an even earlier date ‑‑ as of October 7, 2003, the very day the Gavron warning was first issued by the court without any notice period at all, reasonable or otherwise.

Maurices argument is premised on a fundamental distortion of the holding and disposition in Schmir I. Noting that we modified, rather than reversed, the trial courts March 5, 2004 order, and quoting Niles Sand, Gravel & Rock Co. v. Muir (1921) 55 Cal.App. 539, 541, an 87-year-old appellate decision on the calculation of prejudgment interest,[9]Maurice argues the resulting modified order stands as of the date of the original judgment. He then asserts under the trial courts order, as modified on appeal yet effective as of October 7, 2003 (the date of the hearing from which the March 5, 2004 order originated), Judy was entitled to spousal support for a contingent period of time within the meaning of section 4334, subdivision (a) ‑‑ that is, until (1) she obtained employment at the rate of at least $2,500 per month; (2) she ceased to make a good faith effort to obtain such employment; or (3) she reached the age of 65. Finally, Maurice argues under the express language of section 4334, subdivision (a), his support obligation for such a contingent period terminates on the happening of the contingency, which is self-executing. Because Judy admitted she had made no good faith effort to obtain employment after October 7, 2003, Maurice concludes, the trial court erred by not making its termination order retroactive to that date.

Maurices argument is severely flawed. First, we modified the trial courts March 5, 2004 order terminating support, rather than reversing and remanding for the trial court to recreate it consistent with the views expressed in our opinion, to preserve portions of the order we had affirmed (for example, the findings of changed circumstances based on Judys ability to use her IRA without penalty and her decreased medical expenses) and to avoid the necessity of even further proceedings in the trial court. (See Code Civ. Proc., 43; American Enterprise, Inc. v. Van Winkle (1952) 39 Cal.2d 210, 219; see generally Eisenberg et al., Cal. Practice Guide: Civil Appeal and Writs (The Rutter Group 2007) 11:53, p. 11-17 [appellate court has broad authority to correct error by ordering a modification of the appealed judgment or order (rather than reversing and remanding for further proceedings), thereby permitting disposition of the case in a single appeal].) The decision to promote efficiency by modifying the judgment ourselves, rather than remanding the matter for the trial court to effect the necessary changes, was not intended to, and does not, alter Judys rights or Maurices obligations. Any court-ordered change in Judys entitlement to spousal support following our decision in Schmir I was, as the trial court properly noted, subject to the limitation of section 3653, which provides an order modifying or terminating a support order may be made retroactive only to the date of the filing of the notice of motion or order to show cause.

Second, we held the trial court abused its discretion in terminating Judys support effective November 1, 2003 because Judy had not been given reasonable notice of her obligation to provide for her own support prior to termination. Thus, under the modified order the contingency, to adopt Maurices terminology, that justified a finding of changed circumstances and termination (or reduction) in support is Judys failure to find employment or make a good-faith effort to do so after she had been given notice and a reasonable period of time to accomplish that task. (See Schmir I, supra, 134 Cal.App.4th at p. 58 [even 10 months notice would be problematic in this case].) Although the trial court might have properly given Judy something less than two years notice had it done so in the first instance, by requiring a new hearing following the filing of our opinion to determine whether Judy is making a good faith effort to earn at least $2,500 per month (id. at p. 59) ‑‑ not whether she had in the past made such an effort ‑‑ we necessarily provided Judy with the period between the initial Gavron warning in October 2003 and the filing of our opinion in Schmir I in November 2005 as her notice period.[10] That Judy decided not to pursue employment makes her no different from any other former spouse who, after being warned that spousal support would terminate in six, 12 or 18 months if she or he did not find a job or at least attempt to do so in good faith, elected to allow the period to pass without seeking work.[11]In neither case does the failure to act in response to a Gavron warning permit termination of support prior to the conclusion of the notice period.

2. Maurice Presents No Compelling Reason To Disregard the Express Holding and Analysis of Schmir I

In granting Maurices motion in part and denying it in part, the trial court recognize[d] there is a potential injustice in this result that may not have been anticipated by the Court of Appeal. Implicit in the appellate courts decision may have been the assumption that, having been advised by this court of her obligation to seek employment, Judy would have done so during the pendency of the appeal. Seizing on that observation, as an alternative to his primary argument that our decision in Schmir I did not preclude termination of support as of the date of the initial Gavron warning, Maurice argues limiting the termination of support to May 2006 creates such an unanticipated and harsh injustice we should recognize an exception to the law of the case doctrine[12]and reconsider this portion of our prior decision. (See generally Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491-492 [appellate court may decline to adhere to law of the case doctrine where there has been a manifest misapplication of existing principles resulting in substantial injustice].)

Maurices claim is disingenuous. Far from being an unanticipated result of our prior decision, Maurice clearly recognized, as reflected in both his petition for rehearing to this court and his petition for review of Schmir I in the Supreme Court, that the remedy calls for future hearings on whether Judy is making a good faith effort to earn at least $2,500. In so directing, however, it fails to provide for an examination of what, if anything, Judy has done up to this point to obtain employment, and whether she had made a good faith effort in that regard. As discussed in the preceding section of this opinion, that result was neither unintended nor, in our view, an incorrect application of the law. Having previously rejected Maurices argument on this point, there is no reason to revisit it.

DISPOSITION

The post-judgment order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

PERLUSS, P. J.

We concur:

WOODS, J. ZELON, J.

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[1] As is customary in family law proceedings we refer to the parties by their first names, not out of disrespect, but for convenience and clarity. (See Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.)

[2] Statutory references are to the Family Code unless otherwise indicated.

[3] Because Judy failed to file a respondents brief, we decide the appeal on the record, the opening brief and oral argument by Maurice. (Cal. Rules of Court, rule 8.220(a)(2).)

[4] Section 4330, subdivision (b), which codified the Gavron warning, was enacted after the judgment in this case. (See Stats. 1996, ch. 1163, 2, p. 8488; Stats. 1999, ch. 846, 2.) Section 4336, subdivision (a), creates a rebuttable presumption a marriage of 10 years or more is a marriage of long duration. As discussed, Judy and Maurice were married for 23 years before they separated in 1987.

[5] Section 4320 lists a number of factors a trial court must consider in ordering spousal support including the duration of the marriage, the earning capacity of each party, [t]he marketable skills of the supported party, the possible need for retraining or education to acquire other, more marketable skills and the age and health of the parties. Section 4320, subdivision (l), identifies as one such factor, [t]he goal that the supported party shall be self-supporting within a reasonable period of time, but cautions nothing in this section is intended to limit the courts discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.

[6] In a declaration filed in support of his original application for an order to show cause reducing or terminating Judys spousal support, Maurice asserted his belief Judy had returned to work. In fact, Judy had been unemployed since May 1988. Nonetheless, based on the results of two vocational examinations during discovery, the trial court concluded Judy, at age 61, could return to the work force and earn at least $2,500 per month as an LCSW.

[7] Judy was awarded her costs on appeal. (Schmir I, supra, 134 Cal.App.4th at p. 59.)

[8] Section 4334, subdivision (a), provides, If a court orders spousal support for a contingent period of time, the obligation of the supporting party terminates on the happening of the contingency. The court may, in the order, order the supported party to notify the supporting party, or the supporting partys attorney of record, of the happening of the contingency.

[9] In Niles Sand, Gravel & Rock Co. v. Muir, supra, 50 Cal.App. at pages 641-642, the court affirmed a judgment for breach of written contract but modified the judgment to reflect a $1,442.80 reduction in the amount of damages awarded because of an error in mathematical calculations. The original judgment had provided for prejudgment interest. In modifying the judgment in accordance with the Court of Appeals opinion, the trial court again allowed prejudgment interest, based on the reduced damage award, from the date of delivery of the materials through the date of the original judgment. In Niles Sand, Gravel & Rock Co., at page 541, the only case cited by Maurice on this point, the Court of Appeal approved the trial courts decision to use the date of the original judgment in making its interest calculations rather than the later date when the modification of the judgment occurred. That holding is unexceptional (see, e.g., Beeler v. American Trust Co. (1946) 28 Cal.2d 435, 438 [when money judgment is reduced in amount on appeal, the judgment in its modified form nevertheless bears interest from the date of the original entry ‑‑ not from the date of modification]), but provides no support for the radically different proposition Maurice advances.

[10] Judy, of course, is not responsible for the extension of that period caused by Maurices filing of a petition for review in the California Supreme Court or his more than two-month delay in filing a request for modification in the trial court after the remittitur had issued.

[11] The fact Judy had a period of time within which to attempt to find employment or demonstrate her inability to do so notwithstanding her good faith efforts distinguishes this ground for terminating support from that presented by the hypothetical Maurice posits in which Judy had obtained employment while her appeal was pending. Maurice may be correct that, if Judy had been receiving a monthly income of $2,500 prior to the filing of our decision in Schmir I without disclosing that fact to him or this court, he would be entitled to some form of retroactive relief; but that is a far different situation from the case at bar and would raise issues we need not decide at this time.

[12] The doctrine of law of the case deals with the effect of the first appellate decision on the subsequent retrial or appeal. The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case. (Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491.) The doctrine applies enough though an appellate court may conclude its previous decision was erroneous: Indeed, it is only when the former rule is deemed erroneous that the doctrine of law of the case becomes at all important. (Ibid.)