Lipstone v. Lipstone (In re Lipstone)
| Decision Date | 12 December 2014 |
| Docket Number | B249659 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re Marriage of DOUGLAS and CAROL LIPSTONE. DOUGLAS LIPSTONE, Respondent, v. CAROL LIPSTONE, Appellant. |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BD500436)
APPEAL from an order of the Superior Court of Los Angeles County, Elia Weinbach, Judge. Affirmed.
Carol Lipstone, in pro. per., for Appellant.
No appearance for Respondent.
_____________________ Carol Lipstone appeals an order granting a request by her ex-husband, Douglas Lipstone, to modify his support obligations. Carol1 maintains there is insufficient evidence of a material change of circumstances to warrant a modification. She further contends that the trial court erred by: (1) failing to comply with uniform child support guidelines; (2) failing to consider factors in Family Code section 43202 in modifying spousal support; (3) issuing an inadequate statement of decision (SOD); (4) ignoring the disentitlement doctrine; (5) ignoring the income of Douglas's new spouse; and (6) refusing to set aside portions of the October 2012 stipulation. We conclude these assertions lack merit, and affirm.
Carol and Douglas were married for approximately 16 years. They have two children, Sarah and Joshua. Douglas filed for dissolution in February 2009. Pursuant to a stipulated judgment entered on September 28, 2010, Douglas, then a shareholder in the law firm of BuchalterNemer, PLC (Buchalter), was required to pay support as follows:
Base monthly child support of $1,470 for Joshua and $2,450 for Sarah;
Additional support of $250 per child per month;
Additional child support of 10 percent of Douglas's gross income per year above a base amount of $285,000;
Base monthly spousal support of $3,843; and
Additional spousal support consisting of 15 percent of Douglas's gross income per year above his base salary of $285,000.
On May 14, 2012, Douglas, then unemployed, filed an order to show cause (OSC) seeking a downward modification in support. By then he had been forced to leaveBuchalter, and worked for the law firm of Manning & Kass (Manning) from April 2011 to April 2012, until that firm declined to renew his employment contract.
Douglas's base salary at Buchalter was $285,000. His base salary at Manning was $240,000. He received his last paycheck from the Manning firm in mid-April 2012 and was unemployed for about five weeks before obtaining a position at the Enenstein & Ribakoff law firm (Enenstein) on May 21, 2012, with an annual gross salary of about $200,000. Carol opposed the OSC arguing Douglas voluntarily modified his employment status postjudgment. After Douglas became employed at Enenstein, he and Carol (each represented by counsel) resolved the OSC by stipulation. The only modification of Douglas's support obligation was to reduce support for Joshua, who had turned 18 and completed 12th grade. The stipulation also resolved the parties' dispute regarding Douglas's support arrearages of about $6,000 and minor medical expenses, establishing a payment schedule for the arrearages. On October 16, 2012, the trial court entered an order based upon the stipulation. Apart from this action and the OSC filed when he became unemployed, Douglas has not sought to modify his support obligation which remained fixed even as his base salary decreased at the Manning and Enenstein firms.
On or before November 26, 2012, Douglas was informed that his employment at the Enenstein firm would be terminated at the end of the month. On November 29, 2012, facing termination without another pending offer of employment, and in anticipation of receiving no further salary, Douglas filed the instant request for an order to modify support (RFO). On November 30, 2012, Douglas accepted an offer to become an independent contractor at the Enenstein firm. As an independent contractor, Douglas no longer receives a base salary. He is paid 60 percent of attorney fees received by the firm for work he originates, 40 percent of attorney fees the firm receives for work he billed but which was originated by someone else, and 20 percent of the fees the firm receives for other attorneys' work on matters he originates. Douglas declared that it was impossible for him to estimate his monthly income for 2013.
On December 6, 2012, Carol filed her response to the RFO arguing, as pertinent here, that Douglas's claim to have been terminated by the Enenstein firm was contradicted by the evidence,3 that he had falsified his income and expense declaration which, in any event, did not support his claim that he would be unable to maintain support, and that Douglas remained in arrears on his support obligations.4
In a supplemental declaration filed on December 9, 2012, and a reply brief in support of the RFO, Douglas asserted that, because he would now be paid on a 100 percent commission basis, it would be impermissible to base his future support obligations on such speculative earnings. Accordingly, he requested that his monthly support obligation be modified according to an Ostler-Smith5 calculation tied to his actual earnings to reflect his current circumstances and actual income available for support.
Each party filed additional memoranda and declarations in support of or in opposition to the RFO, which was heard on January 17, 2013. The hearing was based solely on declarations, documentary evidence and the parties' argument. At the conclusion of that hearing the court granted the RFO. On a going forward basis, Douglas was ordered to pay child and spousal support according to his proposed Ostler-Smithcalculation by the fifth of each month (plus a previously ordered add-on), and to provide Carol a copy of his prior month's pay stub every month. In the event Douglas failed timely to submit the pay stub and pay support, an additional support add-on of $1,000 would be immediately effective and due by the end of that particular month, bearing interest at the legal rate until paid. Douglas's counsel was ordered to prepare an order after hearing.
On March 7, 2013, Carol filed an RFO to "Enforce Judgment re Support Medical Expense Reimbursement Ostler/Smith, and a "Memorandum of Points and Authorities in Support of [RFO] to Correct Abuse of Discretion and Attorney Misconduct by Enforcing Spousal Support and Child Support Pursuant to Judgment." She argued, among other things, that the trial court abused its discretion in ruling in Douglas's favor at the January 17 hearing, that Douglas had voluntarily reduced his income so that his support obligation was reduced by 82 percent over the previous 2.5 years while he maintained a high standard of living and incurred unnecessary legal fees at his children's and Carol's expense, that he and his counsel had manipulated and misled the court, and that the October 2012 stipulation should be set aside. Two weeks later, Carol delivered to a different trial judge a letter enclosing her own proposed order, with an attached exhibit detailing the ways in which Douglas purportedly had failed to comply with court orders discussed at the January 17 hearing, and a transcript of that hearing. In response, Douglas argued that Carol's materials were really an inappropriate, untimely motion for reconsideration (Code Civ. Proc., § 1008, subd. (a)).
On August 5, 2013, at Carol's request, the court issued an SOD. (§ 3654.) This appeal followed.6
On appeal Carol contends the trial court abused its discretion when it granted Douglas's request to modify his support obligations because there is insufficient evidence of a material change of circumstances to warrant a modification. She further contends that the trial court erred by: (1) failing to comply with uniform child support guidelines; (2) failing to consider factors in section 4320 in modifying spousal support; (3) issuing an inadequate SOD; (4) ignoring the disentitlement doctrine; (5) ignoring the income of Douglas's new spouse; and (6) refusing to set aside portions of the October 2012 stipulation.7 None of these assertions has merit.
Carol argues there is insufficient evidence to justify the trial court's finding of a material change of circumstances justifying a downward modification in Douglas's support obligations. Her principal argument is that the trial court abused its discretion in modifying Douglas's support obligation by relying on false information regarding Douglas's future income and refusing to impute income based on Douglas's measurable earning capacity to pay additional support.
A child support order "may be modified or terminated at any time as the court determines to be necessary." (§ 3651, subd. (a).) If the original order is consistent with the statewide uniform guidelines,8 a supporting parent seeking a downward adjustmentmust introduce admissible evidence of a material change of circumstances. (See In re Marriage of Bodo (2011) 198 Cal.App.4th 373, 386-392 (Bodo); In re Marriage of Laudeman (2001) 92 Cal.App.4th 1009, 1015; In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 298 (Cheriton).) Similarly, a party seeking to modify spousal support must also demonstrate a material change of factual circumstances. (In re Marriage of Dietz (2009) 176 Cal.App.4th 387, 398; In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 575.)
Trial courts have broad discretion to determine whether changed circumstances warrant a downward modification. (See In re Marriage of Williams (2007) 150 Cal.App.4th 1221, 1233-1234; In re Marriage of Terry (2...
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