Filed 5/16/22 Marriage of R.M. and P.M. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Lizbet Munoz, Commissioner. Reversed and remanded with directions.

Antonyan Miranda and Anthony J. Boucek for Appellant.

R.M., in pro. per., for Respondent.

Appellant P.M. appeals from an order modifying and reducing her former husband R.M.’s monthly child and spousal support.

P.M. contends the family court prejudicially erred in finding that changed circumstances warranted the new order. We reverse the order and remand with directions set forth below.

FACTUAL AND PROCEDURAL BACKGROUND

The parties were married in June 1999, separated in March 2013, and divorced by judgment entered in May 2016. The marriage produced twins who emancipated post-judgment, and a minor, F.M., who is non-verbal autistic, and requires constant care. P.M. is F.M.’s care provider and has had primary physical custody of F.M.

In September 2020, R.M. filed his request for order seeking to reduce child and spousal support of orders, including a child support order that was subject to an annual bonus table under In re Marriage of Ostler & Smith (Smith/Ostler) (1990) 223 Cal.App.3d 33. R.M. argued that beginning August 1, 2020, his annual salary was reduced from $144,000 to $115,000. He supported his request by submitting a letter from his employer stating, “COVID has placed significant financial limitations on the firm, requiring us to lower the base salary and increase the contingent pay of employees with significant sales duties.”

P.M. opposed the motion, arguing R.M. did not demonstrate a substantial change in circumstance as his year-to-date income exceeded that used for prior support orders. She lodged his paystub from the end of September 2020, reflecting that he earned more than the stated $12,000 per month in the existing orders, even excluding bonus income. P.M. argued: “I do not believe Father has met his burden of proof as to a material change of circumstance to modify this post-judgment spousal support order. We had a long duration marriage of greater than 13 years and my earning ability is substantially impacted because [F.M.] is in my care 90 [percent] of the time and . . . requires my undivided attention. Due to my obligations to [F.M.], I am unable to become gainfully employed to support myself.”

At a November 2020 hearing, P.M. objected that R.M. had failed to provide evidence based on Family Code,[1] §4320 regarding spousal support, despite a court order to do so. The family court agreed that it lacked evidence to proceed regarding spousal support, but allowed the hearing to continue as to child support.

R.M.’s counsel argued that it was essentially undisputed that R.M.’s base pay had been reduced: “[R.M.] is an employee who receives bonuses, and so those are not guaranteed. But if they are paid, then Mother participates in that. And there is a Smith/Ostler table, and there was one before, and there will be one now.” R.M. testified that beginning August 1, 2020, his base monthly income from employment was $9,583.

P.M. argued that R.M.’s 2020 paystub showed his monthly income through September was $15,486; therefore, he had failed to demonstrate a sufficient change of circumstance to warrant downward modification of the support orders because his income had increased. She further argued R.M.’s income had merely been restructured. The family court countered, “[R.M.] is stipulating to the Smith/Ostler bonus allocation for anything that is—that is couched as bonus. So the court is going to be using the Smith/Ostler chart, if you will, for any and all bonuses that [R.M.] receives.”

The family court continued the matter until January 2021, and ordered R.M. to file all the corroborating evidence regarding statements already made and the last two months of paystubs as well as additional income documentation and “a [section] 4320 factors declaration.”

R.M. filed a March 2020 communication in which he asserted that his wages would decrease by 50 percent in April 2020 and his employer’s letter stating: “Covid has placed significant financial limitations on the firm, requiring us to lower the base salary and increase the contingent pay of all employees with significant sales duties. Please be reminded that corporate bonuses are contingent and not guaranteed, to be funded on the basis of corporate results and affordability and may be adjusted based on individual, team or corporate performance at the discretion of management. Commissions are similarly contingent, subject to allocation of sales credit and corporate results.” He also filed a second income and expense declaration reflecting that his live-in girlfriend, V.H., had zero income but paid $1,200 of his household expenses in rent.

P.M. lodged R.M.’s 2020 year-end paystub reflecting he earned $168,125 in “gross pay,” including $35,000 denominated as “bonus pay.”

She also submitted F.M.’s treating doctor’s assessment that F.M. “requires 24[-hour] supervision during waking hours to prevent injury, harm in all settings.” In a supplemental declaration, P.M. stated, “While I understand that [V.H.’s] income is not available for support, I am requesting that the Court consider the likelihood that [V.H.] contributes to Father’s expenses.” P.M. also reiterated her own lack of any greater employability due to F.M.’s required care.

At the final hearing on January 25, 2021, R.M. testified that in 2020, he earned a $35,000 bonus, and although his base salary was reduced, he could earn higher bonuses. He also testified his gross pay so far for 2020 was $168,125, excluding his contributions to his 401k plan and medical insurance. He testified V.H. paid half of his rent or $1,200: “We jointly share expenses for everything we do. She pays for her part, I pay for my part, and we do our thing. . . . She pays her half of the rent and then she pays me for the—pays me for—you know, if we split utilities or something like that, then we just basically balance.” He clarified that she was not paying half of his reported groceries.

The family court ruled: “There has been a change of circumstance since the last findings on the issue of support. Father has met his burden and the court finds [his] income has been reduced through no fault or action of his own. [¶] The court finds Father’s monthly gross income is $9,682.00 plus bonuses and commissions. . . . The current order regarding bonuses and commissions shall remain in full force and effect.”

Under the previous child and spousal support orders, R.M. paid $1,568 and $1,800 respectively, based on his stipulated and undifferentiated monthly gross earnings of $12,000. The family court here reduced monthly child and spousal support to $1,417 and $1,100 respectively. It stated it had “conducted a thorough review of all applicable factors pertaining to spousal support and weighed them in arriving at the modification.” Among those factors, the court recognized the parties had a middle class standard of living, the marriage had lasted 13 years 9 months, P.M. had training and experience as a pharmacy technician, and she takes care of F.M. more than 85 percent of the time. The court also stated, “Father has had a demonstrated change in income. The court finds his necessary living expenses to be $3,925.00 per month, this would include mortgage, groceries, utilities, phone, and gas. Father[’]s net income after support is $4,998.00. Bonuses and commissions are not guaranteed, but if earned these amounts are subject to the existing child support order—the remaining amount would be utilized for revolving debt, taxes and other costs.”

The family court explained the parties’ financial obligations and assets: “Mother’s necessary living expenses are $4,725.00. Her net income after receiving child support is $2,575.00. The court also considered an unknown amount of her expenses are used for the child’s in[-]home services and her household maintenance. Father has assets with a value of close to $340,000.00 as stated in his income and expense declaration. Mother has assets of $5,000 with $170,000 in an IRA. Mother has revolving debt of close to $24,000.00. Father has debt of $34,000.00.” (Some capitalization omitted.)

In evaluating the hardships to the parties, the family court stated it balanced “[s]lightly more in favor of Father. [He] has been paying spousal support to Mother since September 2015, which is almost close to half the length of the marriage.”

In analyzing the statutory factor stating that the goal is for the supported party to become self-supporting, the family court advised P.M., “once the impact of COVID subsides and there is evidence the child’s care is not great, one should make reasonable efforts to assist in providing for her support.”

Under section 4320, subdivision (n), which addresses any other factor the court considers just and equitable, the family court stated: “The child is special needs and continues to need care. The evidence supports the child needs to be supervised at all times. With that said, once child and spousal support is paid, the parties are close to being on equal footing. . . . The court did consider Father’s live-in girlfriend only as to the issue of attorney fees as his testimony was some of his expenses were shared. There was no evidence of her income or what expenses were paid.”

DISCUSSION

P.M. contends insufficient evidence supports the family court’s reduction of permanent spousal support. She specifically contends the court erroneously based the modification on an unreasonably narrow examination of R.M.’s gross monthly income, as it focused solely on the temporary reduction to his monthly salary instead of on his increased income for 2020 up until the date of the order, and it failed to include his bonus and commission income or V.H.’s contributions to his living expenses. She maintains this resulted in a patently inequitable, unjust and unreasonable order. She also contends no substantial evidence supports the court’s “implicit finding that [she] should be self-supporting.” (Capitalization omitted.)

“An award of child support rests in the court’s sound discretion and cannot be overturned absent a showing of a clear abuse of discretion. ‘An appellate court does not substitute its own judgment; rather it interferes only if no judge could reasonably have made the order under the circumstances.’ ” (In re Marriage of Hubner (2001) 94 Cal.App.4th 175, 184; In re Marriage of Bodo (2011) 198 Cal.App.4th 373, 384.) Under this standard, we “ ‘examine the evidence in the light most favorable to the prevailing party and give that party the benefit of every reasonable inference. [Citation.] We accept all evidence favorable to the prevailing party as true and discard contrary evidence. [Citation.]’ [Citation.] ‘We do not reweigh the evidence or reconsider credibility determinations.’ ” (In re Marriage of Calcaterra & Badakhsh (2005) 132 Cal.App.4th 28, 34.) “We are not called upon to determine whether we would have made such an award, but whether any judge could reasonably have done so.” (In re Marriage of de Guigne (2002) 97 Cal.App.4th 1353, 1365-1366; In re Marriage of Aylesworth (1980) 106 Cal.App.3d 869, 876.)

“ ‘ “In making its spousal support order, the trial court possesses broad discretion so as to fairly exercise the weighing process contemplated by section 4320, with the goal of accomplishing substantial justice for the parties in the case before it.” [Citation.] In balancing the applicable statutory factors, the trial court has discretion to determine the appropriate weight to accord to each. [Citation.] But the “court may not be arbitrary; it must exercise its discretion along legal lines, taking into consideration the applicable circumstances of the parties set forth in [the statute], especially reasonable needs and their financial abilities.” [Citation.] Furthermore, the court does not have discretion to ignore any relevant circumstance enumerated in the statute. To the contrary, the trial judge must both recognize and apply each applicable statutory factor in setting spousal support.’ ” (In re Marriage of Nelson (2006) 139 Cal.App.4th 1546, 1559.)

We begin with P.M.’s claim that the court erred by excluding V.H.’s rental payment from its calculation of R.M.’s income. This issue alone is dispositive and requires reversal. R.M. testified that V.H. paid $1,200 in rent, or one-half of the $2,400 total. In concluding R.M.’s necessary living expenses were $3,925.00 per month, the family court appeared to include the entirety of his rent ($2,400); it also specifically included $800 for groceries, $250 for utilities; $175 for telephone and $350 for gas. Although this adds up to $3,975 and not $3,925, we presume the discrepancy is based on the court’s miscalculation or typographical error. In any event, the court did not likely reduce R.M.’s expenses by $1200 based on V.H.’s rent payments. We conclude that the court thus overstated R.M.’s expenses, and this was an error under County of Orange v. Smith (2005) 132 Cal.App.4th 1434, 1447. In that case, there was evidence the father received rental payments from his roommate. (Id. at p. 1447.) The question that court addressed was whether that rental income came under section 4058’s definition of “annual gross income.” (Ibid.) The appellate court concluded the trial court did not err in relying on the rental income to calculate child support because, “the statutory definition of ‘income’ for the purposes of calculating guideline child support specifically includes ‘rents.’ ” (Ibid.) It explained: “Inasmuch as . . . section 4058, subdivision (a)(1) states that rent constitutes income, the trial court’s holding is proper, so long as the housing arrangement with the roommate is properly characterized as a sublease and the roommate’s payments are properly characterized as sublease rental payments owing to the father.” (County of Orange, supra, at p. 1448.)

The court here ruled it considered V.H.’s income only as to attorney fees as “[t]here was no evidence of her income or what expenses were paid.” Contrary to the court’s statement, the record contains evidence that V.H. paid R.M. $1,200 for rent. Therefore, the court erred by not considering that relevant evidence. “A trial court abuses its discretion when it applies the wrong legal standard or its factual findings are not supported by substantial evidence.” (Edwards Wildman Palmer LLP v. Superior Ct. (2014) 231 Cal.App.4th 1214, 1224.) We remand this matter for the family court to include V.H.’s rent payments in its calculation of R.M.’s income under section 4058, subdivision (a)(1) for purposes of evaluating his petition for modification of both child and spousal support.

As to P.M.’s other contentions, we take no issue with the court’s ruling that R.M. presented sufficient evidence of changed income and bonus structure at his job. As pointed out, R.M.’s attorney at the hearing stated that if R.M. earned bonuses, “Mother participates in that.” In light of R.M.’s changed circumstances, the court on remand should consider whether to modify the Smith/Ostler bonus table to allocate a portion of R.M.’s future bonuses to spousal support in addition to child support. (Accord, In re Marriage of Mosley (2008) 165 Cal.App.4th 1375, 1387 [“However, any bonus actually received must be counted as part of [husband’s] annual gross income for the purposes of spousal and child support obligations.”].)

Although P.M. claims the family court made an implicit finding she should be self-supporting, we conclude the court merely complied with section 4330, subdivision (b), which provides: “When making an order for spousal support, the court may advise the recipient of support that the recipient should make reasonable efforts to assist in providing for their support needs, taking into account the particular circumstances considered by the court pursuant to Section 4320.” It does not appear the family court based its support order on the fact P.M. was not self-supporting, as the court specified in its order: “[O]nce the impact of COVID subsides and there is evidence the child’s care is not great, one should make reasonable efforts to [become self-supporting].” Moreover, in the child support portion of its order, the court specifically stated it would “continue to use Mother’s actual income of $925.00 per month. Although at trial in 2015, a finding was made [she] is expected to be self-supporting, the evidence presented appears to support the minor child’s condition is worse. All parties acknowledge the child has special needs and that [the child] cannot [be] care[d] for . . . without supervision. This coupled with opportunities for Mother being impacted by effects of COVID-19, the court declines to impute income to Mother at this time.” Those same considerations applied equally to the court’s spousal support order.

P.M. contends that the family court abused its discretion in continuing the hearing on spousal support in the absence of a prima facie showing of changed circumstances in R.M.’s request for order. A “trial court has broad discretion to determine whether good cause exists to continue a hearing date.” (People v. Bentley (2020) 55 Cal.App.5th 150, 152, review granted, Dec. 16, 2020, S265455, review dismissed and remanded, Dec. 15, 2021.) A trial court deciding whether there is good cause for a continuance “ ‘must consider all of the relevant circumstances of the particular case, “applying principles of common sense to the totality of circumstances.” ’ ” (Stanley v. Superior Court (2020) 50 Cal.App.5th 164, 169.) We review a trial court’s ruling on a continuance request for abuse of discretion. (In re Mary B. (2013) 218 Cal.App.4th 1474, 1481.) P.M. has failed to convince us the trial court abused its discretion or that its granting the continuance resulted in any miscarriage of justice.

DISPOSITION

The order is reversed and remanded for further proceedings consistent with this opinion. P.M. is awarded costs on appeal.

O’ROURKE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

HALLER, J.

[1] Undesignated statutory references are to the Family Code.