Marriage of Kelley, In re

• Decision Date: 23 November 1976
• Court: California Court of Appeals Court of Appeals
• Parties: In re the MARRIAGE OF Nancy Ann and Hugh Galloway KELLEY, Jr. Nancy Ann KELLEY, Petitioner and Appellant, v. Hugh Galloway KELLEY, Jr., Respondent. Civ. 48280.

Page 259

134 Cal.Rptr. 259

64 Cal.App.3d 82

In re the MARRIAGE OF Nancy Ann and Hugh Galloway KELLEY, Jr. Nancy Ann KELLEY, Petitioner and Appellant, v. Hugh Galloway KELLEY, Jr., Respondent.

Civ. 48280.

Court of Appeal, Second District, Division 4, California.

Nov. 23, 1976.

Hathaway, Clabaugh, Perrett & Webster, and E. E. Clabaugh, Jr., Ventura, for appellant.

Benton, Orr, Duval & Buckingham and Edwin Duval, Ventura, for respondent.

THOMPSON, ^** Associate Justice.

This is an appeal from an interlocutory judgment of dissolution of marriage. Resolution of the issues raised requires: (1) consideration of an apparent conflict in the rationale of Court of Appeal decisions dealing with the power of the trial court to order termination of spousal support in the future without reservation of jurisdiction to modify the determination (see e.g., In re Marriage of Dennis (1973) 35 Cal.App.3d 279, 110 Cal.Rptr. 619 and In re Marriage of Patrino (1973) 36 Cal.App.3d 186, 111 Cal.Rptr. 367); (2) determination of the issue of first impression concerning the treatment of future social security old age and survivor benefits funded by employee taxes during marriage as community property; and (3) determination of the propriety of a trial court order which, while providing that the parties pay a community debt in a designated proportion, also declares that any post-dissolution reduction of indebtedness must run equally to both parties.

We conclude that: (1) whatever may be the conflict in the language of the existing Court of Appeal opinions, they are distillable into guideline limits of trial court discretion which invalidate a portion of the judgment in the case at bench; (2) the right to future social security old age and survivors benefits is not subject to division as community property in the course of a marital dissolution; and (3) the trial court erred in framing its order providing for post-dissolution discharge of community indebtedness in terms that are overly broad.

The case at bench reaches us on a settled and engrossed statement per rule 7(b), California Rules of Court. The controlling facts are recited from the statement.

After a 22-year marriage, Wife filed her petition for dissolution of the marriage in December 1974. At the time of trial in July 1975, there were two minor children of the marriage, Cynthia born in 1957, and Lisa born in 1960. Husband was 50 years of age and Wife was 48 years old. Both daughters elected to live with Husband who was awarded their custody. Cynthia had recently completed high school and planned to attend college while living at home with her father. Lisa, while still in high school intended to pursue a college education.

Husband was employed as a film editor by a concern producing commercial and industrial films. His gross earnings were approximately $24,200 per year and his take-home pay about $15,600 per annum. Husband's expenses for himself and the two daughters totalled approximately $13,750 a year.

Wife, with the benefit of two years of junior college education, had been employed in medical and dental offices as a secretary-receptionist-bookkeeper for approximately four years prior to her marriage to Husband, and had performed similar work during the first year of the marriage. Shortly after separation, Wife commenced courses in typing, shorthand, and other secretarial skills to equip herself for employment. After separation, she unsuccessfully sought part-time work. Her progress in her course was satisfactory so that she contemplated completion of her schooling shortly after trial and expected to obtain employment at that time. Wife was in good health.

During their marriage, Husband and Wife borrowed money from E.B. and Eleanor Woodworth, Wife's father and mother. The funds were used to purchase a home in which the parties resided at the time of separation, automobiles and other assets, and to pay living expenses. At the time of trial, Husband and Wife owed Mrs. Woodworth, Mr. Woodworth having died, $11,800 on an obligation carrying interest at 6 percent per annum, and $550 on a noninterest bearing obligation. It was understood that principal payments were to be made as Husband and Wife were financially able to pay.

Husband had acquired vested benefits in the motion picture industry pension fund. From 1952 through 1974, 'contributions' in the amount of $5,686.75 were made by Husband to the Retirement Survivor's and Disability Program of the federal Social Security System. Only minimal 'contributions' were made by Wife to the program.

The trial court entered its interlocutory judgment dissolving the marriage and dividing the community property. The family home having been sold, the judgment directs that the proceeds of the sale shall be applied to specified community debts and to attorneys' fees and expenses with the residue of approximately $2,200 awarded to Wife. Other specific nonliquid property of modest value is awarded to each of the parties and the court retains jurisdiction to allocate benefits received from the concededly community interest in the motion picture industry pension plan. Spousal support is awarded Wife at the rate of $500 per month from September 22, 1975, the date of the judgment, to December 21, 1975; $300 per month for the first six months of 1976; $250 per month for the last six months of that year and to June 30, 1978, and $200 per month from July 1, 1978 through June 30, 1980. Payments of spousal support are to terminate on June 30, 1980, 'in any event.' The judgment is expressly modifiable 'as to amount but not as to term.'

The judgment achieves equalization of the valuation of community property ordered distributed to Husband and Wife by an allocation of liability for the Woodworth debt. While the judgment states that '(n)o order is made . . . as to the manner of payment by the parties . . .' it apportions liability for the debt allocating slightly over two-thirds to Wife and slightly under one-third to Husband. The judgment states: 'It is the intent of the Court, as between the parties hereto, to preclude a foregiveness (sic) of these obligations to (Wife) and enforcement as to (Husband). Accordingly, in the event of any proceedings . . . brought to enforce said obligations: ( ) A. Each party who makes any payment on said obligations shall be entitled . . . to contribution from the other party or to a credit upon any indebtedness . . . to the other party (whether or not such indebtedness is due), for the other party's proportionate share of that payment; and, ( ) B. Any reduction in the aggregate balance of said indebtednesses resulting from any cause other than a payment made by a party, whether as the result of payment by a third party or from the release . . . of either one or both of the parties by the creditor . . . shall redound proportionately to the benefit of both parties.' 'Indebtedness' is defined by the judgment to include an obligation for support.

Wife, on this appeal from the interlocutory judgment, contends: (1) the trial court abused its discretion in decreeing periodic reductions of spousal support and in providing for total termination of support without retention of jurisdiction to modify the duration of its award; (2) the court erred in not evaluating prospective social security old age and survivor benefits or Husband's social security 'contributions' in dividing the community property; and (3) the court erroneously subjected the Woodworth debt to 'unreasonable, arbitrary, and unlawful conditions.' Wife also intimates trial court error in not making findings of fact. Any contention to that effect is not included in the settled statement and therefore is not open on appeal. (Rule 7, subd. (a), Cal.Rules of Court.)

Amount and Duration of Spousal Support

Eliminating fault from the equation but otherwise reenacting the provisions of former Code of Civil Procedure sections 139 and 139.7, the Family Law Act of 1969 in section 4801 of the Civil Code vests the court hearing a marital dissolution with discretion to award spousal support in 'any amount, and for such period of time, as the court may deem just and reasonable . . .' The statute requires that 'just and reasonable' be determined by giving regard to 'the circumstances of the . . . parties, including the duration of the marriage, and the ability of the supported spouse to engage in gainful employment without interfering with the interests of the children of the parties in the custody of such spouse.' (Subd. (a), Civ.Code, § 4801.) An order for payment of spousal support terminates at the end of the period specified and may not be extended unless the court retains jurisdiction by the terms of its original order. (Subd. (d), Civ.Code, § 4801.) The statutory provision limiting the power of the court to modify the duration of a spousal support order has triggered an inconsistency in at least the language of California appellate decisions.

The watershed case is In re Marriage of Rosan (1972) 24 Cal.App.3d 885, 101 Cal.Rptr. 295. There Division Two of the Fourth District Court of Appeal reviewed a judgment awarding spousal support to a wife at the rate of $400 per month for one year, $300 a month for the next, and $200 a month for the third year, while not retaining jurisdiction to award payments past that period. (24 Cal.App.3d at p. 891, 101 Cal.Rptr. 295.) The Rosan marriage was 17 years in duration. There were two children, one of whom was experiencing 'emotional problems.' The husband's earnings, net after taxes, averaged approximately $25,000 per year and the parties enjoyed a high standard of living. The community property was valued at about $20,000 and was divided equally with wife receiving over $9,000 in cash and stock. Child support was awarded the wife at the rate of $150 per month for one child whose custody was placed with her, and the husband was given the custody of the other child. The wife intended to pursue a course of instruction...