Marriage of Baron















Filed 1/10/13 Marriage of
Baron CA2/6













NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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




>

In re Marriage of RICHARD and SANDRA BARON.	2d Civil No. B234917 (Super. Ct. No. SD036684) (Ventura County)
RICHARD BARON, Appellant, v. SANDRA BARON, Respondent.

Richard
Baron and Sandra Baron separated in 2007 after a lengthy marriage. Following dissolution
proceedings, the trial court awarded Sandrahref="#_ftn1" name="_ftnref1" title="">[1]
permanent spousal support and security for that support. (Fam. Code, § 4320.) href="#_ftn2"
name="_ftnref2" title="">[2] Richard appeals that award. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The
parties were married in January 1979.
They had no children together.
Shortly after their marriage, the parties founded a retail and
commercial nursery known as Baron Brothers Nursery, Inc. (BBN). Richard's brother, James Baron, owns a 40
percent interest in BBN. Richard also
has an interest in several other business entities and limited liability
corporations.

Sandra
worked for BBN for nearly 30 years, in clerical positions and as office
manager, until she was fired in March 2010.
During that period, BBN contributed to Richard's Social Security account
but not to Sandra's.

The
parties lived an upper middle class lifestyle, with BBN paying virtually all of
their expenses. They always owned a home
and drove luxury automobiles. In
approximately 2000, the parties purchased 46 acres of land located at 8860
Stockton Road, Moorpark, California (Stockton Property), containing an
1800-square-foot mobile home with attached garage and a 6500-square-foot barn,
with a pool, waterfall, stream, artificial lake and crops. They travelled extensively in the United
States and abroad, taking several cruises and flying first class to Europe,
China, Hawaii, New Zealand, Thailand and Costa Rica.

The
parties separated in November 2007.
Sandra petitioned for dissolution and requested spousal support. At that time, BBN had $50,000 cash on hand,
plus another $150,000 in a safe deposit box.
Temporary spousal support was unnecessary because the parties stipulated
that BBN would continue paying the Stockton Property expenses as well as the
parties' telephone bills, automobile expenses, life and medical insurance and
credit card payments.

In
December 2010, the parties resolved the property division issues through a
partial marital settlement agreement in which Richard agreed to buy out
Sandra's share of the community businesses and real property. The agreement requires Richard to make
installment payments to Sandra over a period of 15 years in the total amount of
$1 million, plus interest at 4 percent on $800,000 of the installments, secured
by three deeds of trust. It grants
Richard all assets of the family businesses, the Stockton Property, real
property in Fillmore, some personal property and the debts accumulated during
and after the marriage. The trial court
entered a judgment of dissolution based on that agreement, reserving spousal
support issues for trial.

At
trial, the court considered whether income should be imputed to the parties,
the amount of income available to Richard for spousal support and Sandra's
request for security for support. At
that time, Sandra was 62 years old and unemployed, with arthritis in her hands
and shoulder. Richard was 58 and
reported his health as "good," notwithstanding a heart attack and
bypass surgery in 2004.

The
trial court declined to impute income to either party. The court noted that Richard "has
continued to try to run the [nursery] business during a[n] economic downturn
and by his own testimony, continues to work 60-80 hours a week. Knowing the risks involved, Husband took the
community share of the businesses and the real property. The court finds that he is entitled to try to
bring the business back to its prior level." As for Sandra, the court stated: "[W]e are dealing with a 62 year old
woman who was fired from her only employment of the last 30 years. The court finds it is unrealistic to believe
that [she] will find employment in the near future . . . ."

With
respect to the amount of Richard's income available for support, each party
offered evidence from a forensic certified public accountant. Sandra's expert, Ronald Greene, concluded
Richard has monthly cash flow available for support totaling $29,060, of which
$27,892 is non-taxable. Richard's
expert, Wayne Lorch, determined Richard has monthly income of $3,873.

The
trial court discerned that the "vast difference" in the opinions
arose from conflicting assumptions regarding whether certain expenses were
personal or business. After considering
the evidence supporting these assumptions, the trial court reduced Green's
calculation by $15,610, finding Richard "has income available for support
in the amount of $13,450.00 per month, of which $12,282.00 is
not-taxable." The court weighed the
statutory factors for spousal support (§ 4320) and ordered Richard to pay
Sandra $5,500 per month until the death of either party, Sandra's remarriage or
further order of the court.

Citing
Sandra's age and lack of Social Security benefits, the trial court granted
Sandra's request for security for spousal support. Richard contended security is unnecessary
because upon his death Sandra would receive the remaining balance of the
equalizing payment. The court disagreed,
noting "that [the] equalizing payment is Wife's fair division of the
community." The court ordered
Richard to provide a $500,000 term life insurance policy for a period of 10
years, and a $200,000 policy for the following 5 years.

Finally,
the trial court denied Sandra's request for attorney's fees. Observing that each party incurred in excess of
$250,000 in fees, the court stated:
"Because the parties entered into a Stipulated Settlement
agreement, the value of Respondent's assets cannot be determined. Petitioner will have spousal support income
in the amount of $5,500.00 per month.
Her assets will be paid to her over a fifteen year period. Therefore in consideration of the factors set
forth in . . . § 2030, the court cannot find a basis for the payment of fees to
Petitioner by Respondent."

At
Richard's request, the trial court issued a statement of decision which was
substantially the same as its original decision. On July 14, 2011, the court entered judgment
on the reserved spousal support issues.
Richard appeals.

DISCUSSION

Spousal Support

In
assessing the need for spousal support, the trial court must weigh the factors
set forth in section 4320, including each party's earning capacity, the
supporting party's ability to pay spousal support, the parties' needs based on
the marital standard of living, "[t]he obligations and assets, including
the separate property, of each party," the supported party's ability to
work, the age and health of the parties, the tax consequences of the award, the
balance of the hardships to each party, and "[a]ny other factors the court
determines are just and equitable.
[Citation.]" (>In re Marriage of Lynn (2002) 101
Cal.App.4th 120, 131-132.) Richard does
not dispute that the trial court weighed the relevant statutory factors. He challenges the weight accorded certain
factors and claims the award does not leave him sufficient income for his own
support. We disagree.

"As
a general rule, we review spousal support orders under the deferential abuse of
discretion standard. [Citation.] We examine the challenged order for legal and
factual support. 'As long as the court
exercised its discretion along legal lines, its decision will be affirmed on
appeal if there is substantial evidence to support it.' [Citations.]
'To the extent that a trial court's exercise of discretion is based on
the facts of the case, it will be upheld "as long as its determination is
within the range of the evidence presented."' [Citation.]" (In re
Marriage of Blazer (2009) 176 Cal.App.4th 1438, 1443.)

The
trial court determined Richard has $13,450 in monthly income available for support. After reducing this sum by the $11,478.35
required for his monthly spousal support and property division payments,
Richard complains the remaining $1,971.65 is insufficient to meet his monthly
cash needs of $2,876.

Richard's
analysis is based on the incorrect assumption that his property division
obligation affects his ability to pay spousal support. In In
re Marriage of Martin (1991) 229 Cal.App.3d 1196, 1198 (>Martin), we held that a spouse may not
"finance a 'buy-out' of community property and then successfully claim
inability to pay spousal support."
(Id. at pp. 1198, 1201>.)
In that case, the parties agreed to a property division that allowed the
husband to retain community assets and to buy out the wife's community
interest. To make this payment, the
husband had to borrow money and make monthly payments on the loan. (Id.
at p. 1199.) After considering this and
other relevant factors, the trial court ordered the husband to pay spousal
support. (Ibid.) We affirmed,
reasoning that a spouse should not be penalized for agreeing to a cash buy-out
of an interest in community assets. (>Id. at p. 1201; see In re Marriage of West (2007) 152 Cal.App.4th 240, 250-251 [wife's
receipt of a portion of the proceeds from sale of community business and her failure
to invest the principal did not provide a basis for reducing support]; >In re Marriage of Rabkin (1986) 179
Cal.App.3d 1071, 1081 ["It makes no more sense to reduce wife's spousal
support because she received her rightful share of the community property than
it would to increase wife's spousal support because husband received his
rightful share of the community property"].)

Here,
Sandra allowed Richard to retain virtually all the community assets, including
the income producing assets, in exchange for a cash buy-out payable over 15
years. Richard testified that although
he has assumed debt to make the installments, he has approximately $2.7 million
in equity in two separate properties.
Sandra's $1 million buy-out is less than half the equity in those
properties and is payable over a substantial period of time. Given that Sandra has no employment prospects
or Social Security income, the trial court properly considered the installments
as "Wife's fair division of the community." (See Martin,> supra, 229 Cal.App.3d at p. 1198.) To do otherwise would penalize Sandra for
agreeing to the cash buy-out. (>Id. at p. 1201.)

Because
the monthly installment payments are attributable to Sandra's share of the
community assets, Richard may not use them to reduce his income available for
support. (Martin, supra, 229
Cal.App.3d at pp. 1198-1199.) As a
result, Richard's monthly income after payment of spousal support is actually
$7,950,href="#_ftn3" name="_ftnref3" title="">[3]
easily satisfying his stated monthly cash needs of $2,876.

Richard
also contends the trial court disregarded the $137,000 separate property
inheritance Sandra received from her mother.
To the contrary, the trial court questioned Sandra specifically about
the inheritance, asking if it was "137 or 139?" Sandra clarified the amount and stated she
did not have current access to the money.
Addressing Sandra's request for attorney fees, the trial court noted
Sandra had incurred over $250,000 in fees, more than double the amount of her
inheritance. The court also stated,
without elaboration, that Richard engaged in "the type of conduct which
would compel sanctions under the Code."
After balancing the parties' respective assets and income, however, the
trial court held Sandra responsible for her own fees. Under these circumstances, we cannot say the
trial court improperly disregarded or discounted the inheritance in awarding
spousal support. The trial court has
discretion to decide how much weight to give each factor under section 4320. (In re
Marriage of Cheriton (2001) 92 Cal.App.4th 269, 304, 308.)

Richard
maintains the spousal support award is unfair because most of his monthly
"cash flow" is not actually cash.
We disagree. Section 4320,
subdivision (c) requires that the trial court consider "[t]he ability of
the supporting party to pay spousal support, taking into account the supporting
party's earning capacity, earned and unearned income, assets, and standard of
living." The statute does not
exclude non-taxable income. Richard
opted to pay his personal expenses from the business rather than to draw a
salary for that purpose. Consequently,
almost all his income is tax free, flowing directly from BBN for his personal
benefit.

The
record confirms the trial court considered and weighed all relevant factors set
forth in section 4320. There is nothing
to indicate that the trial court's weighing or application of these factors was
arbitrary or capricious. Therefore, we
conclude the trial court did not abuse its discretion in fixing permanent
spousal support at $5,500 per month. (>In re Marriage of Lynn,> supra, 101 Cal.App.4th at p. 132.)

Security for Spousal Support

Richard
asserts the trial court abused its discretion by requiring him to purchase a
$500,000 term life insurance policy as security for spousal support. He claims security is unnecessary because
upon his death Sandra would receive the entire property division
settlement. He also contends there is no
evidence that life insurance is available or affordable. We are not persuaded.

Section
4360 permits a trial court, where "just and reasonable in view of the
circumstances of the parties," to include in the spousal support award an
amount sufficient to purchase an annuity for the supported spouse or to
maintain insurance for the benefit of the supported spouse on the life of the
obligor spouse, or may require the obligor spouse to establish a trust for
support of the supported spouse. (>Id. at subd. (a).)

In >In re Marriage of Ziegler (1989) 207
Cal.App.3d 788, the trial court ordered the former husband to make monthly payments
to maintain his military survivor benefit plan for the benefit of his former
wife. The Court of Appeal upheld the
order, deciding that it satisfied the "just and reasonable [under] the
circumstances" prong of section 4360 because the wife had less than $300
in income if the husband died and she received no spousal support, the parties
had been married for more than 10 years and the wife was over 50 at the time of
the divorce. (Ziegler, supra, at p.
793). The circumstances are even more
compelling here. The parties were
married for almost 30 years and Sandra is over 60, with no employment prospects
or retirement income. If Richard dies,
she will have virtually nothing available for support other than her remaining
share of the community assets. The trial
court acted within its discretion in ordering security for the support
payments.

In his
trial brief, Richard mentioned that requiring him to obtain a life insurance
policy at age 58 "would be unjust and financially impossible," but
introduced no evidence on that issue. He
cites no authority supporting his view that Sandra had an affirmative duty to
provide evidence of his insurability. In
any event, Richard's assertion is speculative.
He does not know if life insurance actually is available to him and, if
so, at what cost. Section 4360 orders
generally are modifiable or terminable at any time. (Id.
at subd. (b).) The trial court's order
states it will remain in effect "until the death of either party, Wife's
remarriage, or further order of court
. . . ." (Italics added.) If Richard discovers that life insurance is
indeed unavailable or cost-prohibitive due to his age, health or other
circumstance, he may raise the issue in the trial court. We have no basis to make that determination
here.

DISPOSITION

The
judgment on the reserved spousal support issues is affirmed. Sandra shall recover her href="http://www.fearnotlaw.com/">costs on appeal.href="#_ftn4" name="_ftnref4" title="">[4]

NOT
TO BE PUBLISHED.









PERREN,
J.





We concur:







GILBERT,
P. J.







YEGAN,
J.

Ellen Gay Conroy, Judge



Superior Court County of Ventura

______________________________



Ferguson
Case Orr Paterson and Wendy C. Lascher for Appellant.

Goldenring
& Prosser, Peter A. Goldenring and Edwin S. Clark for Respondent.