Lovitz v. Lovitz

• Decision Date: 13 December 1976
• Citation: 65 Cal.App.3d 299,135 Cal.Rptr. 9
• Court: California Court of Appeals Court of Appeals
• Parties: In re the MARRIAGE OF Harold and Barbara Joy LOVITZ. Harold LOVITZ, Petitioner and Respondent, v. Barbara Joy LOVITZ, Respondent and Appellant. Civ. 47478.

Page 9

135 Cal.Rptr. 9

65 Cal.App.3d 299

In re the MARRIAGE OF Harold and Barbara Joy LOVITZ.

Harold LOVITZ, Petitioner and Respondent, v. Barbara Joy LOVITZ, Respondent and Appellant.

Civ. 47478.

Court of Appeal, Second District, Division 5, California.

Dec. 13, 1976.

Arnold Wayne, Sherman Oaks, and J. Paul Spector, Beverly Hills, for respondent and appellant.

Grayson & Gross, Inc., and Philip Jay Dichter, Los Angeles, for petitioner and respondent.

HASTINGS, Associate Justice.

Barbara Joy Lovitz (wife) appeals from an order made March 20, 1975, terminating spousal support on Harold Lovitz (husband's) order to show cause in re modification.

Husband and wife were married on July 10, 1949, and separated in September 1964. There are three children of this marriage. After a trial, the court ordered husband to pay to wife for her support the sum of $600 per month, continuing until wife dies, remarries, or until such payments may be modified by an order or judgment of a court of competent jurisdiction. The court also ordered division of the community property of the parties. A provision of the court's order pertinent to this appeal is as follows:

'8 The minor children of the parties are now in the custody of plaintiff. Plaintiff is a fit and proper person to have and be awarded the custody, care and education of said children, subject to rights of defendant to visit said children and have them with her at reasonable Defendant and cross-complainant is found to be a morally fit person to have the custody of said children, but she is presently emotionally incapable of properly caring for such children and their best interests require that custody be awarded to the plaintiff.'

In August of 1967, in connection with a then pending Order to Show Cause in re Modification of visitation of minor children, Howard D. Ross, M.D., wrote a descriptive report and psychiatric evaluation of the Lovitz family for the superior court. Dr. Ross' report refers to wife's treatments from approximately 1953 and concluded she required considerable emotional support from others in order to cope with the stress of daily living. The report stated she had recovered from a psychotic illness, but diagnosis for recurrence of her former illness was guarded. In conclusion, his report stated that wife would very likely require prolonged psychiatric treatment and protection from the normal stress of daily life. He further stated that the history of wife suggests that she is functioning at her maximum now (August 1967).

On August 26, 1974, husband filed an order to show cause re modification of spousal support. He alleged that wife was able to perform the duties required of a social worker, a job she has had in the past and for which she is qualified. He further alleged that he had suffered several business and financial reverses, and the expenses of raising the children had substantially increased. Further, that wife had had more than enough time to rehabilitate herself. At the hearing, three psychiatrists rendered their opinion on wife's mental state and capacity to work. The record contains four psychiatric reports from these three psychiatrists. The first, dated January 2, 1975, is the report of William H. Rickles, M.D., who concluded as follows: 'Accordingly, in my opinion, Mrs. Lovitz has sufficiently surmounted considerable psychological difficulty and shown herself to be trainable and capable of employment. Further, it is my opinion a final settlement of her financial support by her ex-husband would be psychologically beneficial to her.' ¹

The second report, dated January 6, 1975, is the evaluation of Nicholas A. Bercel, M.D., who said he has been treating wife since 1969. His conclusion was that termination of wife's support was premature and potentially dangerous; that is, a danger of a relapse to manic depression. He also emphasized in his closing paragraph that financial independence for wife is a worthy therapeutic goal, but believed that some evidence of success in her present attempts are appropriate before he would conclude that she is capable of self-support.

The third report, dated January 13, 1975, apparently is a rebuttal by Dr. Bercel to the report of Dr. Rickles. In this report he points out that wife has a bi-modal manic-depressive psychosis which ran in her family, and concluded that 'under the best of circumstances, there is no medically stable condition in such a disease;' and that she has not demonstrated her ability to support herself since she obtained her real estate agent's license.

The fourth report is dated March 14, 1975, and written by a court-appointed psychiatrist, Thomas V. Hoyer, M.D., which concludes that Dr. Bercel's first letter summarized his feelings and he concurred with his recommendations. ² The trial court, after considering the psychiatric reports and evaluating the evidence, made the following comments: '. . . She (Mrs. Lovitz) can work at full bore even by Dr. Hoyer's evaluation. ³ . . . ( ) But, I can not charge her with accomplishing that immediately. ( ) So, for that reason, I have continued support for the time--I have for three years from April 1, at which time it shall terminate. ( ) . . . I find that there is no issue . . . about ability to pay, nor do I find there is an issue about need--yes, you do need the money, but I think that you also need to face the reality of fighting with what you have as a problem and overcoming it, and I'm quite sure you will be able to.'

Two principal issues are raised on appeal. ⁴

1. Was the order modifying and terminating spousal support (after 3 years) final, thus depriving the court of further jurisdiction on this issue; or, alternatively, is the trial court's order still modifiable pursuant to Civil Code section 4801 subdivision (d)? ⁵

'Prior to passage of the Family Law Act, trial courts had ongoing jurisdiction to modify awards of spousal support. Now subdivision (d) of section 4801 of the Civil Code provides for absolute termination of spousal support unless the trial court in its original order retains jurisdiction to extend an order for support. The new law thus affords the trial court the discretion to determine if support should be absolutely terminated after a period of time. In this way, the court can settle the rights of the parties at one time and to some extent curtail endless modification proceedings.' (In re Marriage of Patrino, 36 Cal.App.3d 186, 189, 111 Cal.Rptr. 367, 368.) In our present case, the court, in its original order, retained jurisdiction to modify spousal support; therefore, the issue is whether a subsequent order can deprive the court of further jurisdiction by terminating spousal support immediately or at a later specified date or occurrence. Section 4801 subdivision (d) is identical with its predecessor, Civil Code section 139.7. ⁶ In Maben v. Superior Court, 255 Cal.App.2d 708, 63 Cal.Rptr. 439 the trial court modified a prior support order as follows: 'Defendant is ordered to pay to plaintiff for her support and maintenance for 12 months $250.00 a month commencing January 1, 1966, and continuing for 11 months thereafter at which time alimony shall terminate.' (Id., at 710, 63 Cal.Rptr. at 441). Defendant fully complied with the provisions of that order. On January 13, 1967, plaintiff obtained an order requiring defendant to show cause why he should not be required to pay plaintiff $600 per month as alimony in the future. Defendant moved to dismiss that order to show cause on the ground that the court no longer had any power or jurisdiction to grant the relief sought. The court denied the...