Marriage of Pagaling
Filed 7/30/12 Marriage of Pagaling 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 TERESA and REGINALD S. PAGALING.
2d Civil No.
B233675
(Super. Ct. No.
1005407)
(Santa
Barbara County)
TERESA E. PAGALING,
Respondent,
v.
REGINALD S. PAGALING,
Appellant.
Reginald S. Pagaling
(Husband) appeals from the trial court's order denying his
$5,800 in spousal support he pays to his former wife, Teresa Pagaling (Wife)
each month. He contends the trial court
abused its discretion because he has been paying support for 11 years, after a
15-year marriage. We affirm.
Facts
Husband and Wife were
married August 1984 and separated in November 1999. Their two daughters, born in 1987 and 1991,
were minors when the parties separated.
Both have since reached the age of majority. Husband and Wife are currently in their
mid-50s.
Husband is a member of
the Santa Ynez Band of Mission Indians.
He is not employed. His income
consists of monthly distributions and other payments he receives from the
tribe. In 2001, Husband estimated his
monthly income from the tribe over the previous 12 months to be $17,529. In December 2002, the parties entered into a
stipulated judgment providing that Husband would pay Wife $200 in child support
and $5,800 per month in spousal support.
Their stipulation did not include a date upon which support would be
reduced or terminated, nor did it provide a date by which Wife was expected to
become self-supporting. The judgment,
however, included the standard notice that, "It is the goal of this state
that each party shall make reasonable good faith efforts to become
self-supporting as provided for in Family Code section 4320. The failure to make reasonable good faith
efforts may be one of the factors considered by the court as a basis for
modifying or terminating spousal support."
In 2008, Husband moved
to reduce spousal support. At the time,
he estimated his monthly income from the tribe to be $41,669. He valued his assets at $770,000 and claimed
monthly expenses of $23,986. The motion
to modify was denied. At that time, the
had originally been based on the expectation that Wife could and would earn
$68,000 per year. "Had she gone out
and actually earned $68,000 a year, we'd be at exactly the same place we were
if she weren't earning it because it's already been imputed in computing her
income.
[¶] . . . .
[¶] . . . It works to her benefit at this stage, as
far as I can see. I also, you know, see
that she has some health
problems. [¶] What I
intend to do is not modify support . . . ." When Husband's counsel asked whether that
ruling meant spousal support could never terminate, the court responded,
"Well, I'm not saying that. You
know, I'm saying right now, in this day and age, that imputed income, with her
illness, [it already] more than satisfies the California mandate that she be
self-supporting."
Husband filed the
instant motion to reduce or terminate spousal support in June 2010. At the time, he claimed a monthly income of
$45,705, assets of $770,000 and monthly expenses of $27,022. He contended that the passage of 11 years
from the parties' separation, together with Wife's failure to become
self-supporting, justified the termination or reduction of his support
obligation.
Wife was employed during
the early years of the parties' marriage, but had become a stay-at-home mother
by the time they separated. She has not
worked full time, outside the home since 1987.
Wife has a Bachelors of Science degree in applied behavioral sciences
from the University of California at Davis.
During the 1980s and 1990, she held a number of short-term jobs with public
agencies providing services to Native Americans. These jobs paid between $18 and $25 per hour
and appear to have been either part time, or of limited duration. Wife has also worked in retail sales. A vocational evaluation conducted in 2002
concluded that Wife could earn at least $57,000 a year. Wife claims never to have earned anything
approximating that amount. In her
opposition to the instant motion to modify or terminate spousal support, Wife
stated that she has also operated various home-based businesses, including her
current floral arranging business, but has never made a living from them. She has a number of medical problems,
including hypertension, Graves Disease and a sleep disorder that she believes
prevent her from working full time outside her home.
Throughout these
proceedings, Wife's primary source of income has been the $5,800 in spousal
support she receives each month from Husband.
Her most recent income and expense declaration claimed average monthly
income of $6,290, only $490 of which were attributable to her floral arranging
business and rent she receives on a guest house.
The
Trial Court's Ruling
After an evidentiary
hearing at which both parties testified, the trial court denied Husband's
motion to modify or terminate support.
Although it was not persuaded that Wife's medical problems prevented her
from working full time, the trial court found there had been no material change
of circumstances that would justify a reduction or termination of spousal
support. The trial court reasoned that
the parties had made an agreement under which Wife would receive $5,800 per
month in support, with no step-down or termination date. Continued support was "the benefit of
the bargain for which she negotiated."
It therefore declined to modify or terminate support.
Discussion
Appellant's only
contention is that the trial court abused its discretion when it denied the
motion to modify or terminate spousal support because 11 years have passed
since the original order and Wife has not become self-supporting. Like the trial court, we are not persuaded.
" ' "Whether a
modification of a spousal support order is warranted depends upon the facts and
circumstances of each case, and its propriety rests in the sound discretion of
the trial court the exercise of which this court will not disturb unless as a
matter of law an abuse of discretion is shown." [Citation.] An abuse of
discretion occurs "where, considering all the relevant
has exceeded the bounds of reason or it can fairly be said that no judge would
reasonably make the same order under the same circumstances." [Citation.]'
(In re Marriage of Olson (1993) 14
Cal.App.4th 1, 7 . . . .)" (
Cal.App.4th 893, 898-899.)
" '
"Modification of spousal support ... requires a material change of
circumstances since the last order.
[Citations.] 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. [Citations.]
It includes all factors affecting need and the ability to pay. [Citation.] . . . [A]n abuse [of discretion]
occurs when a court modifies a support order without substantial evidence of a
material change of circumstances.
[Citations.]" [Citations.]'
" (Id. at p. 899, quoting In re
Marriage of Terry (2000) 80 Cal.App.4th 921, 936-937.)
In deciding whether to
modify spousal support, the trial court considers the same factors it considers
when making its original order. (
Cal.App.4th 387, 396.) These
criteria are set forth in Family Code section 4320.
the extent to which the earning capacity of each party is sufficient to
maintain the marital standard of living; the ability of the supporting spouse
to pay spousal support; the needs of each party based on the marital standard
of living; each party's obligations and assets; the duration of the marriage;
the age and health of the parties; the "balance of the hardships to each
party[;]" the "goal that the supported party shall be self-supporting
within a reasonable period of time[;]" and any other factors the trial
court determines "are just and equitable." (§ 4320.)
The spousal support
order in this case was based on the parties' stipulation for judgment. This stipulation " 'is a contract
between the parties. [Citations.] Where the agreement permits modifications, those
modifications require a showing of a change in circumstances. [Citations.]
Moreover, in determining what constitutes a change in circumstances the
trial court is bound to give effect to the intent and reasonable expectations
of the parties as expressed in the agreement,' and thus, 'the trial court's
discretion to modify the spousal support order is constrained by the terms of
the marital settlement agreement.' "
(In re Marriage of Dietz, supra,
176 Cal.App.4th at p. 398, quoting In
re Marriage of Aninger (1990) 220 Cal.App.3d 230, 238.)
When spousal support was
originally calculated in this matter, the parties imputed to Wife an annual
income of $68,000. Thus, the amount of
spousal support was intended to allow Wife to maintain the marital standard of
living, assuming she also earned $68,000.
Husband's agreement to pay support did not include a step-down or
termination date, nor did it include any express agreement that Wife would
become self-supporting by a specific date.
Wife has never earned the amount of income imputed to her in the
original agreement. Husband's ability to
pay support has not decreased since the original order. To the contrary, it has increased as his
monthly distributions from the tribe have increased. Under these circumstances, the trial court
was well within its discretion to find there had been no change of
circumstances justifying a modification or termination of spousal support.
Neither
Cal.App.4th 1225, nor In re Marriage
of Schaffer (1999) 69 Cal.App.4th 801, on which Husband relies,
mandates a different result. In
only 35 years old at the time of the divorce, had no children, and had
substantial separate property assets that produced income for her benefit. (In re
Marriage of Shaughnessy, supra, 139 Cal.App.4th at pp.
1230-1232.) When the original support
order was entered, the trial court noted that the supported spouse was expected
to "find more lucrative employment[,]" by, among other things,
considering "employment retraining options." (Id.
at p. 1239.) Similarly, in
provided that support would decrease after one year and terminate after two
years, because the parties expected Wife would then be self-supporting as a
marriage and family therapist. (
Cal.App.4th at p. 803.) Wife, however,
never sought work that would have made her self-supporting and, by filing a
series of post-judgment motions, extended the two years of spousal support
originally order to 15 years. (
In our case, by contrast, the agreement to pay spousal support never
included a step-down or termination date and the original amount of support
ordered assumed that Wife already earned substantial income.
A substantial period of
time has elapsed since the parties entered into their stipulation for judgment,
and Wife has not become self supporting.
Upon change of circumstances, the trial court will always, of course,
have discretion to consider those facts in deciding subsequent motions to
modify or terminate spousal support.
"However, the mere
passage of time is not alone a sufficient basis for modification. (In re
Marriage of Gavron [(1988)] 203 Cal.App.3d [705,] 710.) With the passage of time, changed
circumstances may occur, but it is the change in circumstances and not the
passage of time which is material." (In re
Marriage of Heitermann (1991) 234 Cal.App.3d 1195, 1202,)
At present, however,
Husband has failed in his burden to prove a change in circumstances sufficient
to justify modifying or terminating spousal support. He continues to have the ability to
comfortably pay support. Wife continues
to need support. The trial court decided
that the balance of hardships falls in her favor. We cannot say that the trial court abused its
discretion as a matter of law in denying the motion to modify and/or terminate
spousal support.
The judgment is
affirmed. Costs to Wife.
NOT FOR PUBLICATION.
YEGAN,
J.
We concur:
GILBERT, P.J.
PERREN, J.
James F. Rigali, Judge
Superior Court County of Santa Barbara
______________________________
Robert R. Walmsley,
Marlea F. Jarrette; Jarrette & Walmsley, for Appellant.
Stephen P. Anderson, for
Respondent.
name="_ftn1" title="">[1] All statutory references are to the Family
Code unless otherwise stated.
