Marriage of Sanderson and Judd
Filed 2/24/12 Marriage of Sanderson and Judd 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
In re the Marriage of JEAN SANDERSON and ROBERT BRENT
JUDD.
JEAN SANDERSON
JUDD,
Respondent,
v.
ROBERT BRENT
JUDD,
Appellant.
D058650
(Super. Ct.
No. D425232)
APPEAL
from an order of the Superior Court
of
County, Lisa C. Schall, Judge. Affirmed.
INTRODUCTION
Robert
Judd (Robert) appeals from the trial court's order of December 23, 2010 reducing monthly
permanent spousal support to Jean Judd (Jean)
from $800 to $500 retroactive to July
1, 2010. He contends the
trial court erred by failing to terminate spousal support when he reached the
customary retirement age of 65.
Alternatively, he contends the trial court erred by failing to terminate
or further reduce spousal support, as Jean was younger, healthier, and no
longer needed spousal support.
name="_ftnref2" title="">[2] We conclude these contentions lack merit and
affirm the order.
BACKGROUND
Robert
and Jean divorced in 1998, after approximately 35 years of marriage. As part of their marital settlement, Robert
agreed to pay Jean monthly spousal support of $800 until either he or Jean
died, Jean remarried, or the court ordered otherwise.
The
spousal support amount was based on several agreed upon findings, including: "(1) [Jean] is 56 years of age, and has
high blood pressure and a history of knee problems. [¶]
(2) [Jean] is currently working fulltime as a
in a skilled nursing facility. [Jean] is
currently grossing $2,080 per month from her employment. No significant increases in [Jean's] earnings
are anticipated. [¶] (3) [Jean] is currently paying $83.00 per
month for medical insurance coverage for herself[.] [¶]
[Jean] will continue to reside in the family residence
. . . after the dissolution of the parties'
marriage. The residence trust deeds are
in the process of being refinanced. It
is anticipated that the first trust deed, property tax, and average maintenance
expense for the residence after the pending refinance of the trust deeds will
total approximately $883.00 per month[.]
[¶] (5) [Robert's] gross earnings
for 1997 were approximately $52,000.
[Robert] has chosen to voluntarily terminate his position wherein he
earns approximately $52,000 per year, and [Robert] anticipates, commencing on
or about May 1, 1998, that
his gross earnings in the foreseeable future, will be significantly less than
$52,000 per year. The agreed upon
spousal support anticipates [Robert's] earnings will be significantly below
said $52,000 gross per year figure."
In
June 2010 Robert filed an order to show cause seeking termination or
modification of spousal support. In his
income and expense declaration, he stated he was 70 years old, was a broadcast
engineer, and was unemployed as of April 30, 2008, but earned $415 to $450 a
day when able to work. In addition, he
stated his average monthly income from pension payments was $112, from Social
Security was $2,172, and from freelance work was $2,974. He stated he had
one-time income of $120,000 from the sale of the house he and Jean had owned
during their marriage, and other assets totaling $250,139. He stated his average monthly expenses were
$6,507.
Jean
opposed termination or modification of spousal support. In her income and expense declaration, she
stated she was 68 years old and worked as an assistant to the director of
medical records for a nursing home. In
addition, she stated her average monthly income from wages was $2,910, from
spousal support was $800, and from Social Security was $1,117. She stated she had other assets totaling
$262,152 and her average monthly expenses were $3,620.
The
trial court declined to terminate spousal support, but reduced it to $500 a
month effective July 1, 2010. The trial court based its decision on, among
other factors, the length of the parties' marriage, the marital standard of
living, Jean's improved marketable skills, her potential for investment income
from the proceeds of the sale of the marital home, Robert's ability to pay
spousal support, and the parties' respective ages and health.
DISCUSSION
I
of Robert's Age
Robert
contends the trial court erred by failing to terminate spousal support after he
turned 65. He asserts evolving case law
supports his view that no supporting spouse may ever be required to pay spousal
support after reaching customary retirement age and he invites us to establish
his view as a rule of law. We decline
the invitation.
"Spousal
support is governed by statute.
[Citations.] In ordering spousal
support, the trial court must
consider and weigh all of the
circumstances enumerated in the statute, to the extent they are relevant to the
case before it. [Citations.] The first of the enumerated circumstances,
the marital standard of living, is relevant as a reference point against which
the other statutory factors are to be weighed.
[Citations.] The other statutory
factors include: contributions to the
supporting spouse's education, training, or career; the supporting spouse's
ability to pay; the needs of each party, based on the marital standard of
living; the obligations and assets of each party; the duration of the marriage;
the opportunity for employment without undue interference with the children's
interests; the age and health of the parties; tax consequences; the balance of
hardships to the parties; the goal that the supported party be self-supporting
within a reasonable period of time; and any other factors deemed just and
equitable by the court. ([Fam. Code,]
§ 4320, subds. (b)-(l).)"
name="_ftnref3" title="">[3] (In re
Marriage of Cheriton (2001) 92 Cal.App.4th 269, 302-304, fn. omitted,
second italics added.)
"
'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. [Citations.] Failure to do so is reversible
error." (In re Marriage of Cheriton, supra,
92 Cal.App.4th at p. 304, italics added; accord, In re Marriage of Geraci (2006) 144 Cal.App.4th 1278, 1297.)
If
we were to hold, as Robert requests, that trial courts are obliged to terminate
spousal support whenever a supporting spouse attains customary retirement age,
we would effectively be requiring trial courts to consider a supporting
spouse's age to the exclusion of any other relevant section 4320 factor. Such a holding would directly conflict with
the statutory requirement that trial courts consider all relevant section 4320 factors when deciding spousal support
matters. We, therefore, have no power or
willingness to grant Robert's request.
Cal.App.4th 1373 (Reynolds), upon
which Robert relies, does not compel a different result. In Reynolds,
husband retired at age 67 and moved to terminate or reduce wife's spousal
support. (Id. at pp. 1375-1376.) The
trial court reduced spousal support, but based the reduced amount on husband's
earning capacity, rather than his actual earnings. (Id.
at pp. 1376-1377.) The appellate court
reversed the trial court's order, holding the trial court could not base
spousal support on the husband's earning capacity instead of his actual
earnings because to do so would require him to work well past "the
'generally accepted retirement age of 65.' " (Id.
at p. 1377, fn. omitted.) The court
explained, "The 'capacity to earn standard' may only be applied where
there is evidence of the ability, opportunity, and willingness to
work." (Id. at p. 1378.) The
court further held "that no one may be compelled to work after the usual
retirement age of 65 in order to pay the same level of spousal support as when
he was employed." (
Instead, when a supporting spouse has a "bona fide
retirement," the trial court may consider the retirement a material change
in circumstance warranting a modification of spousal support. (Id.
at p. 1379.)
instant case in three key respects.
First, the trial court in the instant case did not rely solely on
Robert's earning capacity to determine the modified support amount. Robert presented and the trial court
considered Robert's actual earnings.
Second, Robert was not fully retired.
He continued to work and he intended to continue to work even if the
trial court terminated spousal support.
Third, the trial court did not maintain Jean's spousal support at the
same level it had been, but reduced it by a substantial amount. Thus, despite Robert's contrary
characterization, the instant case does not involve a trial court compelling a
supporting spouse to work beyond customary retirement age to pay a supported
spouse the same level of spousal support.
Moreover,
nothing in Reynolds contravenes the
trial court's statutory mandate to consider all
relevant section 4320 factors. Instead,
courts have—that supporting spouses may legitimately retire at a customary
retirement age and, if they do, their retirement may be a changed circumstance
that may warrant modification of spousal support depending on their actual
retirement earnings. (See, e.g.,
omitted; In re Marriage of Sinks
(1988) 204 Cal.App.3d 586, 594-595.)
Concomitantly,
appellate courts have also recognized, as we do here, that "a supporting
party's retirement or cessation of gainful employment does not automatically
compel a finding of a sufficient changed circumstance to warrant a decrease or
termination of a support obligation.
Rather, whether modification is warranted is governed by the surrounding
circumstances and the trial court's consideration of relevant statutory
criteria." (In re Marriage of Stephenson (1995) 39 Cal.App.4th 71, 80-81, fn.
omitted; see also e.g., In re Marriage of
Crobarger (1986) 178 Cal.App.3d 56, 58-60 [husband's retirement and reduced
income did not require termination of spousal support and the trial court acted
within its discretion by reducing support instead].)
The
trial court's handling of spousal support in the instant case was consistent
with the above authorities. Robert,
therefore, has not demonstrated the trial court abused its discretion by
failing to terminate spousal support upon his attainment of customary
retirement age. To the contrary, the
trial court would have abused its discretion had it done as Robert requested. (See In
re Marriage of Melton (1980) 107 Cal.App.3d 559, 566 [trial court abused
its discretion by establishing a future termination date for spousal support
where the parties had a long marriage; the wife worked and her financial
circumstances had improved since the parties' divorce, but she continued to
require financial assistance to meet her needs; and husband, while able to
retire, intended to continue working].)
II
Failure to Terminate or Further Reduce Spousal Support Because of the
Parties' Respective Ages, Health, and Financial Condition
Robert
alternatively contends the trial court erred by failing to terminate or further
reduce spousal support because Jean was younger, healthier, and no longer
needed spousal support. We disagree.
As
previously discussed, " '[w]hether 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 circumstances, the court 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.' "
(In re Marriage of Olson
(1993) 14 Cal.App.4th 1, 7; accord, In re
Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 575.
Here,
the trial court decided to substantially reduce, but not terminate, spousal
support after considering the length of the parties' marriage, the marital
standard of living and, among other facts, that: (1) Jean had improved her marketable skills
and had the potential for some investment income, (2) Robert continued to work,
intended to continue to work, and did not claim he was unable to pay spousal
support, and (3) both parties were aged and had health issues, although
Robert's health issues were more significant.
Robert does not dispute these considerations, which were not one-sided,
were appropriate under section 4320. He
also does not dispute the sufficiency of the evidence to support them.
Rather,
Robert's arguments in effect ask us to review the evidence anew and
independently determine whether to terminate or further reduce spousal
support. However, "[w]e are neither
authorized nor inclined to substitute our judgment for the judgment of the
trial court. Where the issue on appeal
is whether the trial court abused its discretion, the showing necessary for
reversal is insufficient if it merely emphasizes facts which afford an
opportunity for a different opinion."
(In re Marriage of Baker
(1992) 3 Cal.App.4th 491, 498.) As
Robert has not demonstrated no other reasonable judge would have made the same
order under the same circumstances, he has not shown the trial court abused its
discretion in this case.
DISPOSITION
The trial court's December 23, 2010
order reducing monthly spousal support from $800 to $500 is affirmed. Respondent Jean Judd is awarded
McCONNELL, P. J.
WE
CONCUR:
NARES,
J.
O'ROURKE, J.
As the parties share the same
surname, we refer to them by their first names for clarity. (In re
Marriage of Dietz (2009) 176 Cal.App.4th 387, 390, fn. 1.)
In her respondent's brief, Jean
criticizes other aspects of the trial court's order. As Jean did not file a cross-appeal, we may
only consider these criticisms to the extent they bear on whether any of
Robert's claimed errors were prejudicial.
(Code Civ. Proc., § 906; Estate of
Powell (2000) 83 Cal.App.4th 1434, 1439; Building Industry Assn. v. City of Oceanside (1994) 27 Cal.App.4th
744, 758, fn. 9.)
