Marriage of Catalano, In re

• Decision Date: 13 September 1988
• Docket Number: No. A038366,A038366
• Citation: 251 Cal.Rptr. 370,204 Cal.App.3d 543
• Court: California Court of Appeals Court of Appeals
• Parties: In re the MARRIAGE OF Conni T. and Patrick E. CATALANO. Conni T. CATALANO, Appellant, v. Patrick E. CATALANO, Appellant.

Page 370

251 Cal.Rptr. 370

204 Cal.App.3d 543

In re the MARRIAGE OF Conni T. and Patrick E. CATALANO Conni T. CATALANO, Appellant, v. Patrick E. CATALANO, Appellant.

No. A038366.

Court of Appeal, First District, Division 2, California.

Sept. 13, 1988.

Certified for Partial Publication ^*.

Paige Wickland, Kadushin Law Offices, San Francisco, for petitioner/appellant

Frank L. Crist, Jr., Crist, Griffith, Schultz, & Bjorn, Carmel, for respondent/cross-appellant.

McCARTY, ^** Associate Justice, Assigned.

Conni T. Catalano (wife) appeals from an order awarding her increased child support from former husband Patrick E. Catalano (husband). She challenges the increase as too low. Husband cross-appeals from the order, which also granted wife an award of attorney fees, and from a later order fixing the amount of those fees. He challenges both the increase and fee award as unjustified.

BACKGROUND

The parties' marriage lasted about six years and was dissolved by an interlocutory judgment filed in October 1983. They had separated in 1981 and had one child, a son Jannik, who was age six at the time of the judgment. For the four years before the separation, wife worked full time as a registered nurse specializing in cardiac work and attained earnings from $25,000 to $30,000 a year. She ceased working full time at the time of separation. Husband's income at the time of judgment was apparently about $50,000 a year.

The judgment, as modified in December 1983, awarded wife physical custody of Jannik, with reasonable visitation to husband, monthly spousal support of $1,750 and monthly child support of $475. Wife also received an equalizing cash payment of $80,000 (which she invested in certificates of deposit), a home in Santa Rosa (worth $174,000 in 1983 and encumbered by a mortgage of undisclosed amount) and a 1980 Mercedes-Benz station wagon. ¹

Wife moved in March 1985 to increase both child and spousal support, citing her then-current lack of employment. Negotiations led to a stipulated modification order (effective April 1985) under which child support stayed the same, spousal support was increased to $2,625 monthly, and wife waived forever any right to spousal support after December 31, 1986. Wife found part-time employment as nurse to a private physician in Santa Rosa from March through August of that year and then full-time employment with another such physician through July 1986. She worked after that part-time, three days a week, as an on-call "pool" nurse on night shifts at Community Hospital in Santa Rosa.

The instant appeal arises from a motion wife made in December 1986, the month after which all further spousal support would end, for an increase of monthly child support from $475 to $2,000. She cited inability to find full-time work, reductions of capital to meet expenses, reduced interest income, the prospective termination of spousal support, past reliance on that support to meet ordinary expenses for Jannik, and husband's dramatic increase in yearly income from about $50,000 in 1983 to $395,000 in 1984 (according to tax returns). Husband opposed the motion and a concurrent request for attorney fees and costs, conceding his ability to pay any reasonable increase in child support but objecting, in part, that the motion was a disguised attempt to regain the spousal support which she had stipulated would end.

After a hearing at which both parties testified, the court granted the motion, increasing child support to $1,110 a month, and awarded wife attorney fees and costs fixed by a subsequent order at $5,072. Neither order recites findings, and neither party requested a statement of decision.

DISCUSSION

Both appeals raise common issues regarding the support increase and so will be addressed in a single discussion, with husband's challenge to the fees and costs award addressed afterward. We preface both discussions by noting that the lack of express findings or a statement of decision (Code Civ.Proc., § 632) means that "all intendments favor the ruling[s] below ..., and we must assume that the trial court made whatever findings are necessary to sustain the judgment." (Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 792-793, 218 Cal.Rptr. 39, 705 P.2d 362, citations omitted.) Each implied finding must be upheld if supported by substantial evidence ( id., at p. 793, 218 Cal.Rptr. 39, 705 P.2d 362), viewing the evidence in the light most favorable to the prevailing party and giving that party the benefit of every reasonable inference (In re Marriage of Mix (1975) 14 Cal.3d 604, 614, 122 Cal.Rptr. 79, 536 P.2d 479). We must accept all evidence favorable to that party as true and discard contrary evidence as lacking sufficient verity to be accepted by the trier of fact. (In re Marriage of Okum (1987) 195 Cal.App.3d 176, 182, 240 Cal.Rptr. 458.) The testimony of a single witness, even the party himself, may be sufficient. ( In re Marriage of Mix, supra, 14 Cal.3d at p. 614, 122 Cal.Rptr. 79, 536 P.2d 479; cf. Evid.Code, § 411.)

I

Wife attacks the child support increase as too low; husband attacks it as too high and unsupported by any showing of changed circumstances. We reject husband's arguments and agree with wife that the court abused its discretion in setting the amount below $2,000.

Change of circumstances

To justify a modification of child support, it is usually necessary to show that there has been a material change of circumstances since the prior order. Each case stands or falls on its own facts, and abuse of discretion is the test for reviewing a trial court's conclusion on this issue. (In re Marriage of Norvall (1987) 192 Cal.App.3d 1047, 1051, 237 Cal.Rptr. 770; Petersen v. Petersen (1972) 24 Cal.App.3d 201, 206, 100 Cal.Rptr. 822.)

The court below impliedly found a material change of circumstances; no abuse of discretion appears. As this court has observed in the context of spousal support modification, " '[i]n general a change of circumstances may be anything that affects the financial status of either party.' [Citation.]" (In re Marriage of Hoffmeister (1984) 161 Cal.App.3d 1163, 1173, 208 Cal.Rptr. 345 (Hoffmeister I ).) Husband relies on that part of Hoffmeister I that goes on to say, again in the context of spousal support, that an increase in the supporting spouse's ability to pay does not alone constitute a material change of circumstances--that there must also be a showing that the supported spouse's needs (1) have increased since the last award or, if not, (2) were not met under the prior award and continue to be unmet. (Id., at pp. 1173-1175, 208 Cal.Rptr. 345.) Husband also relies on our clarification, in the same litigation after remand, that the supported spouse's "needs must bear some relationship to the standard of living of the parties during their marriage and not the standard of living of the supporting spouse at the time of the modification hearing." (In re Marriage of Hoffmeister (1987) 191 Cal.App.3d 351, 363, 236 Cal.Rptr. 543 (Hoffmeister II ).) This latter rule, we will conclude, is not applicable to child support.

Husband urges that his increased earnings and improved standard of living did not constitute a material change of circumstances because there was no showing of increased needs since the original award in December 1983 and no showing that the award had not met the child's needs back then. We disagree.

First, substantial evidence supports an implied finding that Jannik's needs were not currently being met. Despite the general rule requiring a showing of changed circumstances since the last prior order, a court may base its modification on a showing of current needs alone where, as here, the prior order called for modification based on a stipulation unaccompanied by findings about any change of circumstances existing then. (In re Marriage of Thomas (1981) 120 Cal.App.3d 33, 34-35, 173 Cal.Rptr. 844; Singer v. Singer (1970) 7 Cal.App.3d 807, 812-813, 87 Cal.Rptr. 42.) "The stipulation of the parties, unless it is tantamount to an agreed statement of facts on which the portion of the decree relating to custody, maintenance and education of the children is based, does not divest the court of authority to modify child support. [Citation.] Any proper modification of the decree, may, in consideration of the best interest and welfare of the children [citation be ordered on application of the mother, despite her previous agreement limiting the father's obligation for support. [Citations.]" ( Singer v. Singer, supra, 7 Cal.App.3d at p. 812, 87 Cal.Rptr. 42.)

Uncontradicted testimony from wife shows that although there was no increase in Jannik's expenses since the last order in April 1985, the $475 monthly child support that she had been receiving (without adjustment since the first award in 1983) was not enough to meet the child's needs, and she had always had to use part of her spousal support to make up the shortfall. The stipulation underlying the April 1985 order is silent on this point, and nothing in the record shows a contrary determination, agreed or evidentiary, attending the 1983 award. Husband cites his declaration testimony that there was no discussion or understanding, in negotiations leading to the 1985 stipulated amendment, that wife would use spousal support to cover Jannik's expenses. Wife had declared, to the contrary, that there was such an agreement and that the entire increase was allocated to spousal support so that husband could gain the tax advantage of having it so allocated (see In re Marriage of Ames (1976) 59 Cal.App.3d 234, 239, fn. 6, 130 Cal.Rptr. 435). However, this issue of how the increase was allocated, or why, is immaterial. Even if there was no agreement one way or the other (husband's claim), wife's testimony remains uncontradicted that she in fact had to rely on spousal support to meet Jannik's needs. It is also unimportant that husband, according to his testimony, disputed that there were changed circumstances while...