Filed 6/1/17 Marriage of Abrew CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR


In re the Marriage of HEATHER ABREW and JOSEPH ABREW.

HEATHER ABREW,
Appellant,
v.
JOSEPH ABREW,
Respondent.
A144141

(Alameda County
Super. Ct. No. CH214628)


Appellant Heather Abrew appeals from an order terminating spousal support, arguing the trial court erred (1) in finding there was a change of circumstances between the last support order and a request for modification of that order, and (2) in its ultimate conclusion to terminate support. She also argues that the trial court should have awarded full attorney’s fees for the proceedings below. We find no error and therefore affirm.
I. BACKGROUND
A petition for the dissolution of the marriage of Heather Abrew and Joseph Abrew was filed on July 26, 2000. In the resolution of that petition, in February 2001 the court awarded physical custody of the Abrews’ two sons (born in 1991 and 1998, respectively) to Heather and ordered that Joseph begin paying $1,025 per month in child support and $424 per month in spousal support to Heather. This arrangement continued until August 2004, when Heather’s involvement in a relationship involving domestic violence required Joseph to take physical custody of the children, a request apparently approved by Heather.
In order to take custody of the children, Joseph filed an order to show cause (OSC) requesting modification of child custody, child support, visitation, and spousal support orders. Although the declaration in support of the OSC only discussed custody, Joseph also checked off boxes requesting termination of spousal support. In October 2004, the court made a temporary order indicating that the original child support orders were “terminated pending next hearing.” As to spousal support, the court ordered Joseph to continue paying Heather $424 per month, “[p]ending further order of this court [at] the continued hearing of this matter.”
The parties engaged in mediation through the court system and came up with a parenting plan in December 2004. The parenting plan, among other things, included the following agreements: (1) that Heather and Joseph would share joint legal custody; (2) that the children would remain in the physical custody of Joseph; and (3) that once Heather was able to find a place to live that she and Joseph agreed was a “safe environment” for the children, Heather would share a joint, “50/50” time share as to physical custody of the children.
The continued hearing on Joseph’s modification petition took place on December 2, 2004. At that hearing, which both Heather and Joseph attended, the court adopted the negotiated parenting plan. However, the court minutes indicate, and the parties seem to agree, there was no “further order” as to spousal support despite the court’s indication in October that spousal support would be considered at the “continued hearing” on December 2.
On July 31, 2013, Heather filed a motion to collect spousal support in arrears, interest and attorney’s fees. Heather alleged that Joseph, at some point in late 2005, “unilaterally stopped paying spousal support” to Heather, telling her that spousal support had been terminated and that he was no longer obligated to pay her. In a responsive declaration dated August 27, 2013, Joseph acknowledged that the court had not addressed or modified the spousal support order in December 2004, yet he “stopped paying [Heather] spousal support immediately following” that hearing.
In January 2014, prior to a court determination on Heather’s motion for arrears, Joseph filed a request to terminate spousal support. This request was still pending on January 23, 2014, when the parties appeared for a trial on the spousal support arrearage issue. The court made the following findings and orders after the January 23 hearing, as memorialized in a February 5, 2014 order: (1) there was a valid and existing order for Joseph to pay Heather $424 in spousal support, no payments had been made since November 2004, and, in total, Joseph owed Heather $68,650.30 for unpaid spousal support, inclusive of interest; (2) Joseph was to make a $2,000 down payment as of February 1, 2014, and $1,600 per month every successive month; and (3) Joseph’s motion to terminate support was to be continued by stipulation to March 6, 2014, with the court reserving jurisdiction as to the amount and obligation of the monthly support due from Joseph to Heather.
Countering Joseph’s request to terminate support, in February 2014 Heather filed a motion to modify the support order by increasing the level of support. The court then set a long cause hearing to resolve the parties’ dispute as to support, focusing the hearing on “whether there had been a sufficient change in circumstances to justify termination or modification of support.” The long cause hearing was held over two days in August and September 2014. In its Amended Statement of Decision (“Amended SOD”), filed December 3, 2014, the court reaffirmed its previous ruling determining the validity of the spousal support order and fixing arrears, noting that Joseph’s suspension of spousal support payments was “at best reckless if not evidence of bad faith.”
In regard to Joseph’s request to terminate spousal support, the Amended SOD concluded it was “undisputed” that the court “subsequently confirmed [the 2001] spousal support order” at the October 6, 2004 hearing, further stating that spousal support “shall be an issue for the continued hearing in this matter.” The Amended SOD found the change in physical custody of the minor children in 2004 to be a sufficient change of circumstances to consider Joseph’s spousal support termination request. The court explained: “At the time the Judgment was entered [in 2001], [Heather] had primary custody of the parties’ two children and received child support in addition to spousal support. In 2004, [Heather] gave custody of the children to [Joseph] because her living arrangement with her then boyfriend was abusive and dangerous. She never regained custody of the children after 2004 or paid any child support to [Joseph]. Neither party at trial or in post-hearing briefs disputes that this was a material change in circumstances—[Joseph] took on the burden of custody without any prospect of receiving child support.”
Addressing Heather’s argument that there was no change of circumstances between the time the custody order was entered in 2004 and the present, a contention she raised in her objections to the Initial SOD, the court noted that the 2004 court “stated spousal support remained an issue for future hearings”; there was no analysis or hearing conducted pursuant to Family Code section 4320 in 2004; and although the December 2004 order “contemplated joint custody with a potential 50% share for Respondent, no such custody arrangement ever occurred.”
The Amended SOD then considered the factors enumerated in section 4320. The court determined that during the marriage the parties enjoyed a modest middle class standard of living, and Heather was able to earn enough to meet that standard of living for four years after the marriage ended. She was “mostly a stay at home mother” during the marriage, and has “no special skills or vocational training.” She earned anywhere between $26,000–35,000 yearly, but has had limited employment since 2012. Joseph was earning nearly twice what he was earning during the marriage, and had no significant debts. In contrast, Heather had been able to survive over the years primarily from support from friends and her landlord, who had given her a loan and allowed her to live on his property rent free at times. Heather had “significant debts,” including the loan from her landlord. The court found there was “no question” that Heather was not enjoying the marital standard of living, and it also recognized that she suffers from various mental and physical ailments, including anxiety issues and panic attacks.
The Amended SOD also dismissed Heather’s claim under In re Marriage of Gavron (1988) 203 Cal.App.3d 705, 712 (Gavron) that she did not know of the expectation for the parties to become self-supporting. The court found that the Judgment contained a standard notice that the supported party should make good faith efforts to become self-supporting. In addition, the court noted that in fact Heather was self-supporting for some time, and it was only recently that “her ability to support herself became in doubt.” The court emphasized that it had broad discretion to determine the length of support.
Finally, the Amended SOD considered section 4320, subdivision (n), which allows the court to consider “[a]ny other factors the court determines are just and equitable.” The court summarized its considerations as follows:
“This was not a marriage of long duration. After payment of arrears, [Joseph] will have paid support for a period exceeding the length of the marriage, despite the fact that [Heather] was self-supporting a number of years following the Judgment. Her current status, while unfortunate, does not change the fact that the marital standard was modest, that she met or exceeded that standard for a number of years, and she will enjoy substantial support arrears payments for some time to come. [Heather] argues that a perpetual support obligation should apply here, at a much higher rate than the original order. The length of time since the Judgment is now 13 years, or substantially longer than the marriage. While [Joseph] is bound by the Judgment for the period prior to his Request to terminate support, he assumed the burden of child custody, without any support, in 2004, a material change in circumstances since the time of the Judgment. He continued to provide support to the children without any assistance from [Heather]. The court does not find it appropriate or equitable to continue support at this time or to increase it. The court accordingly terminates the obligation to pay support as of the date of [Joseph’s] Request for Order.”
The Amended SOD also addressed attorney’s fees. The court had previously ordered Joseph to pay nearly $11,000 in fees and costs to Heather, and Heather sought an additional award of $14,160 based on fees incurred in trial on the matter. The court, acknowledging its previous finding that there was a significant disparity in the income of the parties to warrant payment of fees under section 2030, found it appropriate for Joseph to pay $4,000 in fees to Heather, in part because Joseph had already started making $1,600 monthly arrears payments, which “somewhat redressed the disparity in income, but a disparity still remains such that it is appropriate for [Joseph] to pay a portion” of Heather’s fees. The court directed Joseph to pay a monthly arrears payment of $1000 per month, and a monthly attorney’s fee payment of $500 per month until paid.
II. ARGUMENT
A. Standard of Review and Applicable Law
The trial court has broad discretion to decide whether to modify or terminate a spousal support order. (In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 575.) A modification of a spousal support order may be made, however, “only on a showing of a material change in circumstances after the last order.” (Ibid.; accord, In re Marriage of Sinks (1988) 204 Cal.App.3d 586, 592.) The moving party has the burden of showing a material change in circumstances since the last order was made. (Tydlaska, supra, at p. 572; accord, Sinks, supra, at p. 592 [material change in circumstances must occur “subsequent to the last prior order” (italics added)].) We review for an abuse of discretion, which may be found only “ ‘when a court modifies a support order without substantial evidence of a material change of circumstances.’ ” (In re Marriage of Dietz (2009) 176 Cal.App.4th 387, 398.) Thus, a threshold finding of a change in circumstances after the last prior order of spousal support must be made before the court may consider the modification or termination request.
After a court makes the requisite finding of a material change in circumstances, it then must consider the factors enumerated in section 4320 to determine whether the modification request should be granted. “In reviewing findings supporting a trial court’s exercise of discretion in modifying spousal support, we accept as true all evidence supporting the trial judge’s findings, resolve all conflicts in the evidence in favor of the prevailing party and indulge in all legitimate and reasonable inferences to uphold the judgment.” (In re Marriage of Rising (1999) 76 Cal.App.4th 472, 474, fn. 2.) An abuse of discretion will be found where the court fails to engage in the requisite balancing of section 4320 factors. (In re Marriage of Shimkus (2016) 244 Cal.App.4th 1262, 1273.) Although the trial court is required to consider and weigh the factors found in section 4320, the appropriate weight to give each factor rests with the sound discretion of the trial court due to the unique factual and equitable circumstances of each case. (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 494–495.) “ ‘ “So long as the court exercised its discretion along legal lines, its decision will not be reversed on appeal if there is substantial evidence to support it.” ’ ” (In re Marriage of Biderman (1992) 5 Cal.App.4th 409, 412.) Put another way, an abuse of discretion may only be found if, “after calm and careful reflection upon the entire matter, it can fairly be said that no judge would reasonably make the same order under the same circumstances.” (In re Marriage of Sinks, supra, 204 Cal.App.3d at p. 591.)
B. The Change of Custody of the Minor Children Constituted a Material Change in Circumstances to Allow for Consideration of Joseph’s Spousal Support Termination Request
In its Amended SOD, the court determined it was “undisputed” that the court in 2004 “subsequently confirmed [the 2001] spousal support order” at the October 6, 2004 hearing, but found there was no further order made regarding spousal support at the December 2004 hearing. The trial court further found the change of custody of the minor children from Heather to Joseph, which occurred in December 2004, constituted a material change in circumstances sufficient to consider a modification of the spousal support order. Heather argues that the court erroneously considered the “material change in circumstances” standard was met because the custody change occurred before the most recent order. We disagree, and find there is substantial evidence in the record to support the court’s contrary finding.
Heather reasons that physical custody of the children changed per a stipulation and order filed on October 6, 2004, at which time the court ordered the previous spousal support order of February 2001 to remain in effect until the continued hearing on December 2, 2004. She argues that because the court left the original spousal support order intact after the December 2004 hearing, we should consider December 2004 to be the “final order” as to all issues raised by the OSC, including spousal support. Based on this timeline, the change in custody occurred several months before the last order made, and therefore cannot qualify as a material change of circumstance. Heather also argues that the physical change of custody of the minor children “was already used by the court in making its orders of October 6, 2004 and December 2, 2004,” and the “identical change of circumstance cannot be recycled nearly ten years later as the justification for termination of spousal support.” Heather claims the court considered and rejected termination of spousal support with the December 2004 order, and therefore the issue is now res judicata.
But the record indicates that the October 2004 order was a temporary order pending final determination at the December 2004 hearing. Ultimately, at the December 2004 hearing the court adopted the parenting plan agreed upon by Heather and Joseph, which established that the children would remain in the physical custody of Joseph. It appears that the court never made a final order on spousal support at the December 2004 hearing. It is clear that, in October 2004, the court merely declined to change or terminate the February 2001 order for spousal support, and intended to issue an order on spousal support after the December 2004 hearing, as evidenced by the wording of the October 2004 order indicating that spousal support modification would be subject to “further order of this court [at] the continued hearing of this matter.” It is undisputed that the court did not, at either the October or December 2004 hearings, make any assessment of whether there was a change in circumstances, nor did it consider balancing factors as required by section 4320. The October order was not on the merits; it was simply a placeholder. Thus, we view the February 2001 order as the “last prior order” for purposes of our analysis. Because it is undisputed that the change in child custody in 2004 occurred after that order, substantial evidence supports the trial court’s change in circumstances finding.
C. The Court Did Not Abuse Its Discretion When It Terminated Spousal Support

Heather advances two arguments relating to the issue of termination of spousal support. First, she argues that it was error for the court to terminate spousal support without a finding that she had the ability to support herself. She also argues that termination of support was particularly inappropriate because Joseph had wrongfully withheld support for nearly 10 years. None of the cases Heather cites in support of this first argument is directly on point or particularly helpful to her. For example, she cites In re Marriage of Heistermann (1991) 234 Cal.App.3d 1195, 1204 (Heistermann), in which the Court of Appeal found that the trial court held the “erroneous perception that the mere passage of time required it to shift the support obligation from the ex-spouse to society and to terminate its jurisdiction over spousal support.” But in Heistermann, the trial court’s order terminating support was reversed because it failed to make the requisite finding of changed circumstances, and it also failed to make a proper record of the factors it considered in ordering termination of support. (Id. at pp. 1201–1203.) Also, the supported spouse in Heistermann was disabled, had not worked in 14 or 15 years, and had not been given any directive by the court that she should work towards becoming self-supporting. (Id. at p. 1203.) In contrast, while the trial court in this case did acknowledge that Heather had anxiety problems and panic attacks, it was also undisputed that she had already proved her ability to be self-supporting for several years after the marriage ended. Additionally, while Heather argues she did not receive a Gavron warning, she acknowledges that the original Judgment included a “standard notice that the supported party should make a good faith effort to become self supporting.” The trial court found this notice to be sufficient, and we agree it was.
Heather further argues, as she did to the trial court, that because Joseph inappropriately withheld spousal support, Joseph should have been estopped from requesting a termination of support. This argument misapprehends the concept of estoppel. “Generally speaking, the doctrine of equitable estoppel is a rule of fundamental fairness whereby a party is precluded from benefiting from his inconsistent conduct which has induced reliance to the detriment of another.” (In re Marriage of Valle (1975) 53 Cal.App.3d 837, 840.) In this case, Joseph exhibited no “inconsistent conduct which has induced reliance to the detriment of another.” (Ibid.) Joseph’s conduct was consistent; he consistently failed to pay spousal support to Heather even though there was a standing order to do so. Furthermore, “[g]enerally, the existence of . . . estoppel . . . is a question of fact for the trial court, whose determination is conclusive on appeal unless the opposite conclusion is the only one that we can reasonably draw from the evidence.” (In re Marriage of Turkanis & Price (2013) 213 Cal.App.4th 332, 353.) Although the Amended SOD does not expressly address Heather’s estoppel argument, “[a]ll . . . presumptions are indulged to support [the judgment] on matters as to which the record is silent,” and we presume that the trial court followed the law. (Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 563.) Here, we presume that the trial court considered the estoppel argument and likewise dismissed it as meritless.
The gist of Heather’s argument seems to be that Joseph’s failure to pay spousal support was in bad faith, and thus he should be required to continue to pay support in perpetuity. The trial court considered all the circumstances and the section 4320 factors, as required by law. The court recognized that Heather had financial difficulties, that she was not maintaining the marital standard of living (deemed to be “modest middle class”) and also had a spotty work history, most recently being unable to secure full-time employment. The court noted, however, that the marriage was not of long duration,
and that the arrears order already required Joseph to pay support for a time period well beyond the length of the marriage.
Section 4320 factors explicitly allow for consideration of the length of the marriage and the goal that the supported party should be self-supporting. Section 4320, subdivision (l) allows the court to consider the goal that the supported party should be self-supporting within “a reasonable period of time,” which “generally shall be one-half the length of the marriage.” The same subdivision gives the caveat that “nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section.” (§ 4320, subd. (l).) While it is unfortunate that Heather has not found steady employment in recent years, there is no indication that she will be unable to do so in the future. Finally, subdivision (n) allows the court to consider any other factors the court determines to be “just and equitable” in deciding whether to modify or terminate support. (§ 4320, subd. (n).)
Heather insists that, even if an abuse of discretion standard of review applies here, it was error for the trial court to order the termination of spousal abuse without making a specific finding that she was capable of supporting herself. Given Heather’s troubled condition in 2013, which she contends was brought about in part because of what she characterizes as Joseph’s willful abandonment of his support obligations in 2004, no such finding could have been made. Indeed, she points out, the trial court found that by 2013 her ability to support herself was in doubt. We are not without sympathy to Heather’s plight, but we see no support in the law for the position she takes. Particularly in cases involving marriages of short duration, “it is the rare case . . . where a court is duty bound to exercise its discretion in only one way.” (In re Marriage of Baker (1992) 3 Cal.App.4th 491, 498.) Heather, “in effect, ask us to review the evidence anew, [and] determine the weight to be given each factor listed in [section 4320]. . . . This we cannot do. We 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. [Heather] must show ‘that no judge would reasonably make the same order under the same circumstances.’ ” (Id. at p. 498.)
It may well be true that Heather suffered from not receiving support payments for many years—as her counsel urged at oral argument, “she cannot get those years back”—but, as we note above, the trial judge weighed the appropriate factors and made a considered judgment about the equities of the situation as a whole. When Joseph took on the responsibility of caring for the children, he decided to relieve himself of the burden of making spousal support for a lengthy period. Ultimately he paid a price for that unilateral decision. The Amended SOD ordered Joseph to make monthly spousal support arrearage payments of $1,000, for a total amount of $68,650.30 including interest, plus monthly payments of $500 on an attorney’s fee award of $4,000, until all of those payment obligations are fully satisfied. At the end of the day, Heather will have received payments for approximately 13 years instead of the presumptive period of approximately four years pursuant to section 4320, subdivision (l), in addition to the fee award payments. Heather argues the equities demand that Joseph pay a steeper price—in effect, an obligation of spousal support without end. On this record, we cannot say it was an abuse of discretion to decide otherwise.
D. Attorney’s Fees
Heather argues that the trial court should have awarded full attorney’s fees ($14,160) in the trial court below, rather than just the $4,000 it awarded. We are not persuaded.
Although Heather objected to the court’s award of less than the full amount of fees she requested, she based her objection on section 2030, which govern awards of need-based attorney’s fees in post-dissolution proceedings. (See also § 2032.) On appeal, she does not renew that objection, but instead argues that section 1101 mandates an award of attorney’s fees in the trial court because Joseph breached his fiduciary duty to Heather by failing to pay spousal support. Because Heather did not argue for attorney’s fees on section 1101 grounds in the trial court, she has forfeited the argument on appeal. (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564 [“Failure to raise specific challenges in the trial court forfeits the claim on appeal.”].)
Even if Heather had not switched to a new line of argument on appeal, we would still affirm. Trial courts have broad discretion not only to weigh the relative ability of each party to bear the burden of attorney’s fees and decide where that burden should fall (§ 2032, subd. (a)), but also to assess the value of counsel’s services in accomplishing what is “reasonably necessary to maintain or defend the action” (§ 2030, subd. (d)). (See Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2016) ¶ 14:209, p. 14-75.) “[T]he proper legal standard . . . requires the trial court to determine how to apportion the cost of the proceedings equitably between the parties under their relative circumstances.” (In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 975 (Falcone & Fyke).) In rendering a statement of decision addressing the issue—assuming there is a request for one (Hogoboom & King, supra, at p. 14-75)—the court need not make express findings on anything beyond the ultimate fact that the amount awarded is just and reasonable. (In re Marriage of Garrity and Bishton (1986) 181 Cal.App.3d 675, 687, superseded by statute on other grounds as explained in In re Marriage of Weaver (1990) 224 Cal.App.3d 478, 484.)
In this case, Heather dropped the specific objections she made in the trial court, failed to request that the court address the basis for the order in its Amended SOD, and on appeal has pointed to nothing suggesting that the court failed to exercise its discretion properly. We cannot conclude “that no judge could reasonably have made the order, considering all of the evidence viewed most favorably in support of the order.” (Falcone & Fyke, supra, 203 Cal.App.4th at p. 975.)
III. DISPOSITION
We affirm the trial court’s order terminating spousal support and the award of attorney’s fees to Heather.

 





_________________________
Streeter, J.


We concur:


_________________________
Ruvolo, P.J.


_________________________
Rivera, J.























Abrew v. Abrew (A144141)