Cassinelli v. Cassinelli (In re Marriage of Janice R.)

Decision Date14 October 2020
Docket NumberE072789
CourtCalifornia Court of Appeals Court of Appeals
PartiesIn re the Marriage of JANICE R. and ROBERT J. CASSINELLI JANICE R. CASSINELLI, Appellant, v. ROBERT J. CASSINELLI, Respondent.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


APPEAL from the Superior Court of Riverside County. Robert W. Nagby, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Clark & Gomez and Julie M. Clark for Appellant.

Law Offices of Ellen C. Dove and Ellen C. Dove for Respondent.

In 1986, when Robert and Janice Cassinelli were divorced, Robert was ordered to pay Janice $541 a month as her share of his military retired pay. In 2013, Robert stopped receiving military retired pay and started receiving different military-related benefits instead. Federal law barred a state court from awarding Janice any share of these latter benefits. Janice therefore filed the present proceeding for spousal support.

In 2019, after a protracted procedural history — including a previous opinion by this court, a grant of certiorari by the United States Supreme Court, and a new opinion by this courtthe trial court denied Janice any spousal support.

Janice appeals. We will hold that she has not shown that the denial of spousal support was an abuse of discretion. Hence, we will affirm.



Janice and Robert were married in 1964. At that time, Robert was on active duty as a member of the United States Air Force. After 20 years of service, he retired from the military. In 1985, the parties separated. Janice then filed this marital dissolution proceeding.

In 1986, pursuant to stipulation, the trial court entered a final judgment. It awarded Janice a 43.1 percent interest in Robert's military retired pay. It reserved jurisdiction over the issue of spousal support.

In 2012, it was determined that Robert had a combat-related disability. As a result, in 2013, he stopped receiving military retired pay and started receiving veteran'sdisability benefits and combat-related special compensation. This meant that Janice stopped receiving her share (at that time, $541 a month1) of Robert's military retired pay.

In January 2014, Janice filed a motion to modify the judgment by ordering Robert to pay her spousal support. In August 2014, she filed a motion for attorney fees. In April 2015, the trial court awarded her spousal support of $541. It also awarded her $7,180 in attorney fees.

Robert appealed. In a partially published opinion, we upheld both awards. (In re Marriage of Cassinelli (2016) 4 Cal.App.5th 1285.) Robert then petitioned for certiorari. The Supreme Court granted the petition, vacated the judgment, and remanded for further consideration in light of Howell v. Howell (2017) 581 U.S. ___ (Howell). (Cassinelli v. Cassinelli (2017) 138 S.Ct. 69.)

On remand, in 2018, we held that the support award constituted reimbursement or indemnification for the loss of Janice's share of Robert's military retired pay, which was prohibited under Howell. (In re Marriage of Cassinelli (2018) 20 Cal.App.5th 1267, 1273-1275.) However, we also held that the trial court had discretion to treat this loss as a changed circumstance, which called for an award of spousal support, in some amount. (Id. at p. 1275) Thus, we remanded with directions to "hold a new trial on Janice's request for a modification of spousal support." (Id. at p. 1278.)

Before trial, Janice filed a request for $26,334.08 in additional attorney fees and costs.

The case was tried to the court on two non-consecutive days — December 17, 2018 and January 25, 2019.

In March 2019, the trial court issued a methodical and detailed statement of decision. It denied Janice any spousal support.

The trial court noted that, according to Janice's income and expense declaration,2 she had income from three sources: Social Security, a retirement plan, and an annuity. It totaled $1,885 a month. Also according to her income and expense declaration, her expenses were $4,168.50 a month. Based on her trial testimony, however, the trial court found that this was "excessively exaggerated." It did not specifically find what her true expenses were.

According to Robert's income and expense declaration, he had income from four sources: Social Security, state teacher's disability, veteran's disability, and combat-related special compensation (CRSC). These totaled $5,856.68. Also according to his income and expense declaration, his expenses were $5,617 a month. This did not include the $9,603 (i.e., the $7,180, plus interest) that he owed Janice for attorney fees.

The trial court gave little weight to the marital standard of living, because "[t]he parties last resided together over thirty-three (33) years ago."

It accepted that Janice "should not be expected to keep working past her normal retirement age . . . ." However, it noted that "[p]ost-dissolution support is typically awarded for only as long as necessary to permit the supported spouse to become self-supporting." "Here, [Janice] has had thirty-three (33) years after termination of the marriage to become self-supporting. [Janice] did just that. . . . Absent attorney fees associated with this matter and some credit card debt, [Janice] has been able to attain a self-supporting lifestyle."

It concluded: "Although [Janice] has demonstrated that she has some need, the court cannot find that [Robert] has the ability to pay." "Based on [Robert's] needs . . . , in order to grant [Janice's] request for spousal support (which the court believes she needs), the court would need to take the funds from a disabled military veteran who would then be unable to meet his own legitimate living expenses." It also denied Janice any attorney fees.

Under the 2015 order awarding spousal support — which we reversed in 2018 — Janice had collected $8,531 from Robert. The trial court ordered this offset against Robert's $9,603 liability for attorney fees.



Preliminarily, Robert contends that the statement of decision is nonappealable.

A. Additional Factual and Procedural Background.

Before the record was filed, Robert filed a motion to dismiss the appeal, in which he argued that the statement of decision was not an appealable order. Janice filed an opposition. We denied the motion. We ruled that, regardless of its label, the statement of decision was, in substance, a post-judgment order.

B. Discussion.

In his respondent's brief, Robert argues that we erred by denying his motion to dismiss. However, he adds: "Responde[nt] wishes to preserve this argument for further appeals but is willing to waive for further discussion at this time. This waiver is only done contingent upon this appeal being the last, and heard on its merits."

Robert cannot "waive" the issue of appealability. "The existence of an appealable judgment is a jurisdictional prerequisite to an appeal." (Jennings v. Marralle (1994) 8 Cal.4th 121, 126.) "Jurisdiction cannot be conferred upon an appellate court by waiver. [Citation.]" (Baker v. Castaldi (2015) 235 Cal.App.4th 218, 225.)

We adhere, however, to our order denying the motion to dismiss.

"The general rule is that a statement or memorandum of decision is not appealable. [Citations.] The rule's practical justification is that courts typically embody their final rulings not in statements of decision but in orders or judgments. Reviewing courts have discretion to treat statements of decision as appealable when they must, as when a statement of decision is signed and filed and does, in fact, constitute the court's final decision on the merits. [Citations.] But a statement of decision is not treated asappealable when a formal order or judgment does follow . . . . [Citations.]" (Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 901.)

The statement of decision here was signed and filed. It did not direct either of the parties to prepare a formal order. Robert nevertheless submitted a proposed formal order; the trial court, however, did not sign it. As far as the record shows, the trial court took no steps to enter any further formal order.

We therefore conclude that the statement of decision constituted the trial court's final decision on the merits. Accordingly, it is appealable.



In an effort to preempt Janice's contentions wholesale, Robert contends that the trial court erred by finding that she showed need.

Ordinarily, in determining spousal support, the trial court must consider, weigh, and balance a list of factors set forth in section 4320.3 As Robert notes, however, section 4322 states: "[W]here there are no children, and a party has or acquires a separate estate . . . sufficient for the party's proper support, no support shall be ordered . . . against the other party." Thus, if Janice did not show need, she was not entitled to any spousal support, and the trial court was not required to consider any of the section 4320 factors. (In re Marriage of Terry (2000) 80 Cal.App.4th 921, 928.)

"Generally, a respondent who has not appealed from a judgment or appealable order may not urge error on appeal. However, an exception applies where a respondent raises an issue on an interim ruling for the purpose of determining whether the appellant was prejudiced by the asserted error. [Citations.]" (San Diegans for Open Government v. Har Construction, Inc. (2015) 240 Cal.App.4th 611, 627; see also Code Civ. Proc., § 906.)

The trial court found that "[Janice] has demonstrated that she has some need . . . ." "'It is well established that a reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact.' [Cit...

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