In re Marriage of Dennis M., B199973 (Cal. App. 6/23/2008)

• Decision Date: 23 June 2008
• Docket Number: B199973
• Parties: In re Marriage of DENNIS M. and SHERRY LYNN SCHWARTZ DENNIS M. SCHWARTZ, Appellant, v. SHERRY LYNN SCHWARTZ, Respondent
• Court: California Court of Appeals Court of Appeals

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In re Marriage of DENNIS M. and SHERRY LYNN SCHWARTZ DENNIS M. SCHWARTZ, Appellant, v. SHERRY LYNN SCHWARTZ, Respondent

B199973

Court of Appeal of California, Second Appellate District, Division Five

June 23, 2008

Not to be Published

Appeal from an order of the Superior Court of Los Angeles County, No. NWD120688, Michael J. Convey, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Dennis Schwartz, in pro. per., for Appellant.

No appearance on behalf of Respondent.

TURNER, P. J.

I. INTRODUCTION

Dennis M. Schwartz appeals from a June 27, 2007 order reducing but not terminating his spousal support obligation to his former wife, Sherry Lynn Schwartz. (Fam. Code, §§ 3554, 3651.) We affirm the order.

II. BACKGROUND

The parties were married on November 23, 1968, and separated in December 1989. On January 5, 1994, the trial court ordered Mr. Schwartz to pay his former spouse support of $4,000 per month until July 30, 1995, and $2,000 per month thereafter until her death or remarriage or until further court order. The trial court ordered, "[Ms. Schwartz] is advised to seek employment." Additionally, the trial court held: "[T]his order will meet the needs of [Ms. Schwartz], and will allow [her] to maintain a lifestyle commensurate with her lifestyle . . . during the marriage." On March 1, 1996, the trial court denied Ms. Schwartz's motion to increase spousal support.

Mr. Schwartz filed a September 27, 2006 order to show cause to terminate spousal support. Mr. Schwartz asserted Ms. Schwartz was earning more than $75,000 a year and was self-supporting, therefore spousal support should be terminated. The trial court reduced the spousal support from $2,000 to $1,000 a month. Mr. Schwartz appeals from this order.

III. DISCUSSION

An order modifying spousal support rests within the trial court's sound discretion. (In re Marriage of Geraci (2006) 144 Cal.App.4th 1278, 1299, fn. 34; In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 47; In re Marriage of Biderman (1992) 5 Cal.App.4th 409, 413.) The Court of Appeal has held: "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. [Citations.] Reversal requires a clear showing of abuse of discretion. [Citations.]" (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 480; accord, In re Marriage of Geraci, supra, 144 Cal.App.4th at p. 1286; In re Marriage of Rising (1999) 76 Cal.App.4th 472, 478.) It is Mr. Schwartz's burden on appeal to affirmatively establish an abuse of discretion. (In re Marriage of Rothrock (2008) 159 Cal.App.4th 223, 230; Furniss v. Furniss (1946) 75 Cal.App.2d 138, 141.)

Mr. Schwartz does not argue the trial court abused its discretion. Mr. Schwartz asserts his former wife is self-supporting and, therefore, the trial court's refusal to terminate spousal support violates his right under the United States Constitution not to be married and to associate with her. There are several problems with this argument. First, we agree the right to marry is protected by the United States and California Constitutions. (Loving v. Virginia (1967) 388 U.S. 1, 12; Griswold v. Connecticut (1965) 381 U.S. 479, 485-486; In re Marriage Cases (2008) 43 Cal.4th 757, 809-810; Williams v. Garcetti (1993) 5 Cal.4th 561, 577; Conservatorship of Valerie N. (1985) 40 Cal.3d 143, 161.) But, there is no constitutional right not to be married or to associate with an ex-spouse. (See Mattingly by Mattingly v. Heckler (7th Cir. 1986) 784 F.2d 258, 269 [appellant cites no legal authority for assertion the obligation of interspousal support is a fundamental privacy right recognized under the Constitution]; Whitehouse v. Ives (D.Me. 1990) 736 F.Supp. 368, 374 [obligation of interspousal support is not one of the fundamental privacy rights recognized under the Constitution]; Reese v. Reese (Ill.App. 1971) 278 N.E.2d 122, 123-124 [divorce is not a federal or state Constitutional right and separate maintenance statute is constitutional].) Mr. Schwartz can point to no legal authority for the proposition that requiring him to pay continued spousal support violates his constitutional rights.

Second, even if Ms. Schwartz is self-supporting, the trial court was not required to terminate spousal support. Family Code section 4320 governs spousal support. (All further statutory references are to the Family Code.) The trial court must independently consider and weigh each of the relevant factors set forth in section 4320. (In re Marriage of Geraci, supra, 144 Cal.App.4th at p. 1297; In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 302-304; In re Marriage of Schulze (1997) 60 Cal.App.4th 519, 526.) In so doing, the trial court determines the weight to be accorded each factor. (In re Marriage of Geraci, supra, 144 Cal.App.4th at p. 1297; In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 304.) The spousal support decision must be made based on the facts and circumstances existing at the time the modification is requested and the order is made. (In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 575; In re Marriage of Rosen (2002) 105 Cal.App.4th 808, 824; In re Marriage of Baker (1992) 3 Cal.App.4th 491, 498; In re Marriage of Prietsch & Calhoun (1987) 190 Cal.App.3d 645, 656.)

Section 4320 states: "In ordering spousal support under this part, the court shall consider all of the following circumstances: [¶] (a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following: [¶] (1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment. [¶] (2) The extent to which the supported party's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties. [¶] (b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party. [¶] (c) The ability of the supporting party to pay spousal support, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living. [¶] (d) The needs of each party based on the standard of living established during the marriage. [¶] (e) The obligations and assets, including the separate property, of each party. [¶] (f) The duration of the marriage. [¶] (g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party. [¶] (h) The age and health of the parties. [¶] (i) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party. [¶] (j) The immediate and specific tax consequences to each party. [¶] (k) The balance of the hardships to each party. [¶] (l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a `reasonable period of time' for purposes of this section generally shall be one-half the length of the marriage. However, 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, Section 4336,[¹ ] and the circumstances of the parties. [¶] (m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4325. [¶] (n) Any other factors the court determines are just and equitable."

We find no abuse of discretion. The trial court carefully considered the statutory factors and the circumstances of the parties. Given the 21-year length of the marriage, Mr. Schwartz's undisputed ability to pay spousal support, Ms. Schwartz's apparently stable but limited earning capacity, the age and health of the parties, and the balance of hardships, the trial court could reasonably conclude Mr. Schwartz should continue to pay $1,000 a month in spousal support. (See In re Marriage of Beust (1994) 23 Cal.App.4th 24, 28-31.)

Mr. Schwartz asserts the state's interest in requiring spousal support was to allow Ms. Schwartz to become self-supporting, and once she did so, spousal support was no longer warranted. That contention is without merit. As the statutory factors demonstrate, Ms. Schwartz's ability to support herself is but one consideration. Moreover, as expressly stated in section 4320, subdivision (l) with respect to the self-supporting goal, "[N]othing 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, Section 4336, and the circumstances of the parties."

Mr. Schwartz cites In re Marriage of Brantner (1977) 67 Cal.App.3d 416, 420, for the proposition that, "The State's compelling interest is to mitigate the harm to the [wife's] career caused by periods of unemployment to perform marital duties during the marriage." In Brantner, the Court of Appeal for the Fourth Appellate District described the wife as, "[A]n unemployed and currently unemployable woman, 44 years of age, facing the possibility of becoming blind . . . ." (Id. at p. 419.) The Court of Appeal held in part: "[A...