Marriage of Klug

Filed 6/3/08 Marriage of Klug 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

William D. Klug appeals an order of the family law court denying his motion to modify or terminate spousal support, and awarding attorney's fees to Sharon C. Klug.[1] We affirm.

FACTS AND PROCEDURAL HISTORY

On July 1, 2001, William and Sharon separated after a marriage of nearly 30 years. On December 19, 2003, they stipulated to an award of $700 monthly spousal support to Sharon commencing August 1, 2003, until further court order, among other things. The parties stipulated that the marriage was a long-term marriage and agreed that the family law court would retain jurisdiction regarding spousal support. The family law court entered judgment on the stipulation on January 22, 2004.

Nearly two years later, William filed a motion to modify spousal support and requested an award of attorney's fees and sanctions. (Fam. Code, 4336, subd. (c).)[2] He declared that Sharon's mother had died, and Sharon had inherited $46,000 in bank accounts and a Simi Valley home. William pointed out that prior to her mother's death, Sharon lived at the home and paid her mother $400 monthly. Now, Sharon resides there with their adult daughter Kimbralyn and recently, his niece Ginger.

At the modification hearing, the parties testified and offered evidence of their respective income and expenses. They also stipulated that the fair market value of the Simi Valley residence is $572,000, the fair rental value is $2,300 monthly, and the rental value of each bedroom is $600-$650 monthly.

Sharon presented evidence of $3,540 monthly salary as office manager to the Simi Valley School District and $4,373 monthly expenses. She testified that she expended most of the funds in her mother's bank accounts for funeral expenses and other needs. Sharon testified that she has monthly maintenance expenses, insurance, and property taxes regarding the home, and that the City of Simi Valley has a lien on the property for a rehabilitation loan. She also stated that her $10,000 debt to her mother had been forgiven.

Sharon stated that she gave her mother's 1999 Nissan automobile to Ginger, who suffers from lymphoma and receives frequent chemotherapy. She added that her daughter pays her $400 monthly for gasoline and telephone expenses, but that neither she nor Ginger pay rent. Ginger does pay her food and living expenses, however, and is employed.

The family law court decided that the initial spousal support was presumptively fair. It found that Sharon's inheritance did not "materially change her pre-inheritance standard of living," and it declined to engage in "microcomparisons" regarding the marital standard of living. The court stated: "This is not a one-for-one comparison. It is a similarity of life style." Although Sharon's salary has increased approximately $700 since the entry of judgment on January 22, 2004, and she gave her mother's automobile to Ginger, the court did not find these factors significant. The court also found that Sharon was not required to take tenants or boarders into her home.

The family law court denied William's modification motion. At Sharon's request, it awarded her $4,300 attorney's fees based upon William's superior economic position.

William appeals and contends that the trial court abused its discretion by denying his motion and awarding Sharon attorney's fees.

DISCUSSION

William argues that the family law court did not properly consider every circumstance enumerated in section 4320, including that Sharon no longer pays rent and has inherited bank accounts, a home, and an automobile; her mother forgave her $10,000 debt; her salary has increased approximately $700 monthly; and Kimbralyn and Ginger do not pay rent or utilities. William asserts that Sharon inflated her expenses for house repairs and maintenance. He argues that Sharon subsidizes Kimbralyn and Ginger, and he should not support the subsidy. (In re Marriage of Serna (2000) 85 Cal.App.4th 482, 487 [spousal support award based upon expenses of adult children living with former spouse is indirect child support beyond the court's jurisdiction].) William points out that Sharon's free housing may be considered as a factor in determining income and support obligations. (Stewart v. Gomez (1996) 47 Cal.App.4th 1748, 1755 [family law court properly considered Indian reservation housing as income in determining child support]; County of Kern v. Castle (1999) 75 Cal.App.4th 1442, 1457-1458 [family law court abuses its discretion by not considering $1 million inheritance in determining obligor's child support].)

William also asserts that Sharon's income should include $1,200 monthly rent from Kimbralyn and Ginger. He argues that Sharon's monthly expenses must not include Kimbralyn's automobile expenses, excessive repair or maintenance for the home, or utility costs for Kimbralyn and Ginger. William concludes that section 4322 applies, requiring termination of spousal support where a party has acquired a separate estate sufficient for his or her proper support. (In re Marriage of Terry (2000) 80 Cal.App.4th 921, 928.) He requests that we review the family law court's decision de novo. (Id., at p. 929.) 

Finally, William argues that the family law court erred by awarding attorney's fees to Sharon. He asserts that the court improperly considered his monthly salary based upon an 80-hour work week.

A party seeking modification of a spousal support order must establish a "material change of circumstances since the time of the prior order." (In re Marriage of Norvall (1987) 192 Cal.App.3d 1047, 1060.) This required showing applies to stipulated agreements and litigated orders alike. (Ibid.; In re Marriage of Smith (1990) 225 Cal.App.3d 469, 495, fn. 17 [presumption that stipulated spousal support is the result of arm's length negotiations considering then-existing circumstances].) A "material change of circumstances" means "a reduction or increase in the supporting spouse's ability to pay and/or an increase or decrease in the supported spouse's needs [and] includes all factors affecting need and the ability to pay." (In re Marriage of McCann (1996) 41 Cal.App.4th 978, 982.) "Circumstances" broadly include all factors relating to the parties. (In re Marriage of Morrison (1978) 20 Cal.3d 437, 454.)

The court must weigh and consider all relevant circumstances enumerated in the Family Code regarding spousal support. (In reMarriage of Lynn (2002) 101 Cal.App.4th 120, 132.) Our review of an order modifying spousal support is governed by an abuse of discretion standard. (In re Marriage of McCann, supra, 41 Cal.App.4th 978, 982-983 [court abuses discretion by modifying a support order without substantial evidence of a material change of circumstances].)

The family law court did not abuse its discretion by denying William's modification motion. Moreover, its ruling reflects that it considered Sharon's employment, her increased expenses due to relatives and home maintenance, the remaining funds ($6,700) inherited from her mother, as well as other factors relevant to its decision. The court determined that these factors were not significant in view of the Klugs' long-term marriage and the parties' standard of living during the marriage. The court ruled that "[Sharon] lives in what are probably comfortable circumstances similar to those she enjoyed while married."

The "marital standard of living" refers to the parties' reasonable needs commensurate with their station in life. (In re Marriage of Smith, supra, 225 Cal.App.3d 469, 491.) It is a general description, not a specific measurement or mathematical standard. (Ibid.) The general description is satisfied by "the everyday understanding of the term in its ordinary sense, i.e., upper, middle or lower income." (Ibid.) Here the family law court properly refused to engage in "microcomparisons" regarding Sharon's post-dissolution standard of living.

As a reviewing court, we do not reweigh the evidence of the parties' circumstances or standard of living. (In reMarriage of Calcaterra & Badakhsh (2005) 132 Cal.App.4th 28, 31 ["We do not retry cases on appeal"].) "[I]n the final analysis trial courts must possess broad discretion to decide the applicability and weight of [spousal support] guidelines as they apply to the facts and equities of each case." (In reMarriage of Smith, supra, 225 Cal.App.3d 469, 481.)

In re Marriage of Terry, supra, 80 Cal.App.4th 921, upon which William relies, is distinguishable. There the reviewing court concluded that the wife had acquired a sufficient separate estate to meet her needs and that her spousal support should terminate. Terry involved a different financial situation, however, from that here; Mrs. Terry had investments totaling $3,745,788, with income of approximately $104,602. (Id., at p. 931.)

Moreover, we do not agree that the determination that a separate estate is insufficient to generate a certain level of support is a legal determination subject to de novo review. (In re Marriage of Terry, supra, 80 Cal.App.4th 921, 929.) Instead, the determination whether there has been a material change of circumstances such that the supported spouse's separate estate has become sufficient for his or her proper support is a factual question for the trial court. We review the trial court's determination for sufficient evidence after deferring to its factual findings and credibility determinations. (Id., at p. 937 (conc. & dis. opn. of Sepulveda, J.).) 

The family law court properly awarded $4,300 attorney's fees to Sharon on the basis of William's "superior economic position" and section 2030. The court received evidence of the parties' respective incomes and needs. ( 2030, subd. (a)(2).) William's annual salary is more than twice that of Sharon's, and he refused her pretrial offer of a modest reduction in spousal support. He did not argue that his monthly salary rested upon an 80-hour work week. Moreover, the court awarded a portion of the nearly $7,000 attorney's fees Sharon requested. A motion for an award of attorney's fees and costs rests in the discretion of the family law court. (In reMarriage of Keech (1999) 75 Cal.App.4th 860, 866.) "The discretion invoked is that of the trial court, not the reviewing court . . . ." (Ibid.)

In his reply brief, William raises arguments and makes factual assertions that were not presented in the trial court or in his opening brief. We do not address them here.

The order is affirmed. Respondent to recover costs and attorney's fees on appeal.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.

Henry J. Walsh, Judge

Superior Court County of Ventura

______________________________

Lawbreeze A Law Corporation, Vicki L. Fullington for Appellant.

Orrock, Higson & Kurta, R. Dennis Orrock and Paula D. Emmons for Respondent.

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[1] To ease the reader's task, and not from disrespect, we shall refer to the parties as "William" and "Sharon."

[2] All further statutory references are to the Family Code.