Marriage of Aninger, In re

• Decision Date: 11 May 1990
• Docket Number: No. B038780,B038780
• Citation: 220 Cal.App.3d 230,269 Cal.Rptr. 388
• Court: California Court of Appeals Court of Appeals
• Parties: In re the MARRIAGE OF Jeanne and Robert H. ANINGER, Robert H. ANINGER, Appellant, v. Jeanne ANINGER, Respondent.

Page 388

269 Cal.Rptr. 388

220 Cal.App.3d 230

In re the MARRIAGE OF Jeanne and Robert H. ANINGER Robert H. ANINGER, Appellant, v. Jeanne ANINGER, Respondent.

No. B038780.

Court of Appeal, Second District, Division 7, California.

May 11, 1990.

[220 Cal.App.3d 235] Allen E. Botney, Encino, for appellant.

Jack I. Esensten, Rolling Hills Estates, for respondent.

JOHNSON, Associate Justice.

Robert Aninger appeals from an order increasing his spousal and child support payments, dividing the proceeds of the sale of the family residence between him and his ex-wife and ordering him to pay the attorney's fees of his ex-wife incurred in the proceeding.

We reverse the order as to the modification of spousal support and modify the award of attorney's fees. In all other respects we affirm.

FACTS AND PROCEEDINGS BELOW

The Aningers' marriage was dissolved in September 1984. The judgment of dissolution incorporated the terms of a marital settlement agreement between the parties covering support payments and sale of the family residence, among other things. As to support, the agreement called for Mr. Aninger to pay family support in the sum of $290 per week ($1256 per month) from August 1984 through August 1989 and $174 per week ($753 per month) from September 1989 through June 1994 at which time the support would be reduced to zero with the court retaining jurisdiction over spousal support without any termination date. As to sale of the family residence, the agreement provided the residence would be listed for sale no later than June 1989. If Ms. Aninger elected to sell the residence before June 1987, the proceeds were to be divided equally between the parties. If she elected to sell between June 1987 and June 1988, the proceeds were to be divided 45 percent to Ms. Aninger and 55 percent to Mr. Aninger. And, if Ms. Aninger elected to sell between June 1988 and June 1989 the proceeds were to be divided 40 percent to her and 60 percent to Mr. Aninger.

In March 1988, Ms. Aninger petitioned for an order increasing the family support payments to $750 per month per child ($1500 per month) and $750 per month spousal support (a total of $2250 per month). She also requested the court to divide the proceeds from the sale of the family residence 45 percent to her and 55 percent to Mr. Aninger. In support of the modification, Ms. Aninger alleged the two minor children are older and their needs are greater than when the original order was made in September 1984 and Mr. Aninger "has much greater income and earning power now."

The Aningers were married for twenty years and had two children, Susan born in November 1970 and Michael born in February 1976. Mr. Aninger's income and expense declaration showed net monthly disposable income of $4,744 and monthly expenses of $4,007 not counting his support payments. Ms. Aninger's income and expense declaration showed a net monthly disposable income of $1,198 plus $1,255 per month family support payments from Mr. Aninger for a total of $2,453 per month; her monthly expenses totalled $2,689.

At the hearing, Ms. Aninger testified her income and expenses had both increased since filing her financial statement. Her new gross income was $22,500 per year which the court calculated as $1,503 net per month. The family residence had been sold and she had purchased a condominium for $280,000 using $140,000 of the proceeds from sale of the family residence as a down payment. Her mortgage payment was now $1,002 per month plus $190 a month condominium fee and $233 per month property tax.

In support of her claim to 45 percent of the proceeds from the sale of the residence Ms. Aninger introduced a letter written by her attorney to Mr. Aninger dated May 27, 1988, accompanied by real estate listing documents for the family residence. The letter stated, in part, "It is necessary that the documents be signed and the listing effectuated pursuant to the terms of the Court Order as to sales between June of 1987 and June of 1988."

Ms. Aninger's counsel presented documentation showing attorney's fees of $6,500 plus costs of $164.50.

After receiving the evidence and hearing argument of counsel, the trial court modified the support order to $629 per month per child ($1,258 per month) and $705 per month for spousal support to continue until Mr. Aninger's death, Ms. Aninger's remarriage or further order of court. The court ordered the proceeds from the sale of the family residence divided 55 percent to Mr. Aninger and 45 percent to Ms. Aninger. Mr. Aninger was ordered to pay Ms. Aninger's attorney's fees and costs in the sum of $6,664.50.

Mr. Aninger filed a timely appeal.

DISCUSSION

I. THERE WAS NO SHOWING OF A CHANGE OF CIRCUMSTANCES TO JUSTIFY MODIFICATION OF THE SPOUSAL SUPPORT ORDER.

Orders modifying support will not be set aside on appeal without a clear showing of abuse of discretion. (In re Marriage of Hopwood (1989) 214 Cal.App.3d 1604, 1607, 263 Cal.Rptr. 401.) Although the trial court possesses broad discretion in modifying spousal support orders, (In re Marriage of Morrison (1978) 20 Cal.3d 437, 454, 143 Cal.Rptr. 139, 573 P.2d 41), it abuses that discretion when it modifies the order in the absence of a "material change of circumstances," (Hopwood, supra, 214 Cal.App.3d at [220 Cal.App.3d 238] pp. 1607-1608, 263 Cal.Rptr. 401), or where its findings are not supported by substantial evidence. (In re Marriage of Norvall (1987) 192 Cal.App.3d 1047, 1060, 237 Cal.Rptr. 770.)

Where, as here, the record lacks express findings of fact or a statement of decision all intendments favor the ruling below and we must assume the trial court made whatever findings are necessary to sustain its order. Of course, each implied finding must be supported by substantial evidence. The evidence is viewed in the light most favorable to respondent who is entitled to the benefit of every reasonable presumption. We accept as true all evidence favorable to respondent and discard contrary evidence as unaccepted by the trier of fact. (In re Marriage of Catalano (1988) 204 Cal.App.3d 543, 548, 251 Cal.Rptr. 370.)

The Aningers entered into a marital settlement agreement covering spousal support and this agreement was "accepted, reviewed, and approved" by the trial court and incorporated into the judgment of dissolution. ! [CT 1 ff.]! Such a marital settlement agreement is a contract between the parties. (See, e.g., Civ.Code, § 4811, subd. (b); In re Marriage of Hentz (1976) 57 Cal.App.3d 899, 901, 129 Cal.Rptr. 678; In re Marriage of Rabkin (1986) 179 Cal.App.3d 1071, 1081, 225 Cal.Rptr. 219; Modglin v. Modglin (1966) 246 Cal.App.2d 411, 415, 54 Cal.Rptr. 582.) Where the agreement permits modifications, those modifications require a showing of a change in circumstances. (Hentz, supra, 57 Cal.App.3d at p. 901, 129 Cal.Rptr. 678; In re Marriage of Norvall, supra, 192 Cal.App.3d at p. 1063, fn. 8, 237 Cal.Rptr. 770.) Moreover, in determining what constitutes a change in circumstances the trial court is bound to give effect to the intent and reasonable expectations of the parties as expressed in the agreement. (Modglin, supra, 246 Cal.App.2d at p. 415, 54 Cal.Rptr. 582; Hentz, supra, 57 Cal.App.3d at p. 901, 129 Cal.Rptr. 678; In re Marriage of Zlatnik (1988) 197 Cal.App.3d 1284, 1287, 243 Cal.Rptr. 454; In re Harbach (1987) 195 Cal.App.3d 629, 634, 240 Cal.Rptr. 698; Rabkin, supra, 179 Cal.App.3d at p. 1080, 225 Cal.Rptr. 219.)

Thus, the trial court's discretion to modify the spousal support order is constrained by the terms of the marital settlement agreement. The court may not simply reevaluate the spousal support award. In Modglin, supra, 246 Cal.App.2d at p. 415, 54 Cal.Rptr. 582, the court explained:

"We have no right to assume that the parties when they made their stipulation for alimony of $200 per month for one year, and $100 per month thereafter, did not know precisely what they were doing. We have no way of knowing what multitude of factors, or even what single consideration, entered into those stipulations. There is no suggestion, even remote, that any of them were illegally induced.

"In these circumstances, even though respondent's business has spread beyond the County of San Bernardino and his business and net earnings are probably geometrically increased over and above what they were at the time of the interlocutory decree, we do not feel justified, on the showing here made, in reopening the divorce litigation, and in effect setting aside a bargain originally made in open court under the supervision of a superior court judge."

The decisions in Hentz, Rabkin and Harbach, supra, are illustrative of the court's duty to give effect to the parties' expectations as reflected in the marital settlement agreement.

In the Hentz case, the husband and wife entered into a marital settlement agreement providing the husband would support the wife until he died or she remarried. Before the occurrence of either event the husband initiated proceedings to modify the support order by terminating spousal support. The appellate court affirmed denial of the modification stating:

"The court, by including the stipulation in its own decree, presumes that the parties arrived at a fair support award, after arm's-length negotiations, that took into consideration all of the circumstances as they then existed. The court thereafter should not permit a party to change this contractual arrangement, absent changed circumstances, as it would allow a party to repudiate and change a legal contract for no reason at all. Because marital support provisions in property settlement agreements are modifiable by law ... it is necessary to give some legal protection to the original agreement, otherwise it is meaningless. The 'changed circumstances' rule provides this protection." (57 Cal.App.3d at pp. 901-902, 129 Cal.Rptr. 678) (Citation omitted.)

In Rabkin, the court reversed an order which reduced the monthly spousal support the husband had...