Marriage of Stephenson, In re

• Decision Date: 26 September 1995
• Docket Number: No. D018407,D018407
• Court: California Court of Appeals Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 8253, 95 Daily Journal D.A.R. 14,199 In re the MARRIAGE OF Leslie and Norlene STEPHENSON. Leslie STEPHENSON, Respondent, v. Norlene STEPHENSON, Appellant.

Page 8

46 Cal.Rptr.2d 8

39 Cal.App.4th 71, 95 Cal. Daily Op. Serv. 8253,

95 Daily Journal D.A.R. 14,199

In re the MARRIAGE OF Leslie and Norlene STEPHENSON.

Leslie STEPHENSON, Respondent, v. Norlene STEPHENSON, Appellant.

No. D018407.

Court of Appeal, Fourth District, Division 1, California.

Sept. 26, 1995.

As Modified Oct. 20, 1995.

Scott B. Tepper, Los Angeles, and Robert M. Garland, San Diego, for appellant.

Andrew J. Parrott, Escondido, for petitioner and respondent.

WORK, Acting Presiding Justice.

Following the dissolution of their 31-year marriage, Norlene Stephenson appeals that portion of an order reducing spousal support from $1,500 to $345 because of a change in circumstances arising from Leslie Stephenson's election to take an early retirement at age 59. She contends Leslie's decision to retire early from his $75,000 a year job constituted a voluntary and deliberate attempt to reduce or extinguish his spousal support obligation, requiring the trial court to consider his earning capacity in evaluating his request for termination or modification of support. Moreover, she contends former Civil Code ¹ section 4801, subdivision (a) (repealed by Stats.1992, ch. 162) was improperly applied to the facts and that, in any event, Leslie has failed to adequately prove there was a change in circumstances justifying modification of support at the time the request was made. As we shall explain, we conclude the nature of the cessation of employment, be it retirement, quitting or layoff, or whether voluntary or involuntary in character, is irrelevant when it comes to the trial court's duty to consider statutory criteria before determining support obligations. For, a spouse's obligation to continue support is predicated upon the enumerated statutory criteria including reasonable earning capacity under the circumstances, regardless whether there is evidence of deliberate avoidance of support obligations. Accordingly, we affirm portion of the order that treats Leslie's severance pay ($52,000) as the equivalent to eight and one-half months of salary and refuse to modify the $1,500 monthly support obligation during that time, because it is amply supported by the record. However, we reverse that portion of the order reducing the monthly spousal support to $345 after the expiration of that time period; for, it was premature under the circumstances and the trial court abused its discretion in not applying the statutory criteria under former section 4801, including earning capacity.

I

Leslie and Norlene were married in 1952, when Norlene was 17 years of age. The parties legally separated in 1983. Since December 1, 1957, Leslie had been employed by Otis Elevator Company and by late 1992 at 59 years of age he was a construction supervisor earning approximately $74,000 per year. During the marriage, Norlene was the homemaker and worked in various secretarial positions. After they separated, Norlene attempted to become trained and earn a living as a professional photographer, having no other vocational skills other than secretarial. Plagued by various health problems (i.e. sacroilitis, ankylosing spondylitis and fibrositis) requiring the use of medication to control At the time of dissolution, Leslie was ordered to pay Norlene monthly spousal support of $2,000. In May 1991, spousal support was modified from $2,000 to $1,500 retroactive to March 1991. In August 1992, Leslie filed an order to show cause for modification of spousal support, declaring his intent to retire in October 1992, from Otis Elevator Company. In his supplemental declaration, Leslie explained the nature of his retirement from Otis Elevator Company as a construction superintendent as follows:

the constant pain, her efforts to establish a career as a professional photographer have been modestly fruitful, as she has been hampered by not only her physical disability, but also a lack of capital funds to start up and carry on the business and the theft of her photographic equipment.

"One does not need to think too hard to realize that construction of all sorts has come to a virtual standstill in San Diego County. And one needs only to take a look around the skyline of downtown San Diego to realize that there are no new skyscrapers under construction. About the only construction being done these days is a small amount of homebuilding. Homes do not need elevators. My approaching sixtieth birthday and the standstill in construction have coincided. There was an 'understanding' between me and my employer that it would be a wise decision on my part to retire. In fact, I answered [Norlene's counsel's] question whether the company would benefit from my continuing to work for them as follows: 'Two more heads are rolling this week. There's not any openings.' He asked me whether there were any incentives for retiring other than what I described as 'the golden handshake' of one week of pay for every year I had worked for Otis. There was not."

In other words, Leslie decided to retire and receive the $52,000 in severance pay because the chances of being laid off were high and, if he had not retired, but risked continued employment, and were terminated, he would not receive any severance pay.

By order filed on December 4, the trial court reduced spousal support from $1,500 to $345 per month, commencing July 15, 1993, approximately eight and one-half months after Leslie's date of retirement. Essentially, the trial court determined the severance pay amounted to eight and one-half months normal salary for Leslie, resulting in its prospective order monthly spousal support be reduced eight and one-half months from the date of his retirement to $345 only if the circumstances remain unchanged and the only income to both parties continues to be their retirement. The court determined that at that time, Leslie's income would be $1,200 and Norlene's income would be $295. In its order entered January 29, 1993, the court expressly stated: "Spousal support shall be modified as ordered herein only if the income to each party remains only pension/retirement payments each is entitled to." Norlene timely filed a notice of appeal on February 8.

II

Norlene contends the record establishes Leslie's decision to retire early was voluntary and constituted a deliberate attempt to reduce or extinguish his spousal support obligation to her, requiring the trial court to consider his earning capacity in evaluating his request for modification of support. Leslie responds the trial court properly did not apply that standard because the record did not demonstrate he had deliberately depressed his income. However, as we shall explain, within the context of the trial court's duty to apply governing statutory criteria to determine support obligations, it matters not the nature of the cessation of employment or whether it be voluntary or involuntary in character. For, a supporting spouse's further obligation to support, and the level of that obligation, is predicated upon the enumerated statutory criteria including reasonable earning capacity under the circumstances regardless whether there is any evidence of deliberate avoidance of support obligation.

Preliminarily, spousal support " 'must be determined according to the needs of both parties and their respective abilities to meet these needs. [Citation.] In this regard, a trial court has broad discretion and an abuse thereof only occurs where it can be The moving party bears the burden of establishing a material change of circumstances since the last order was made in order to obtain modification of the spousal support order. (In re Marriage of Olson, supra, 14 Cal.App.4th at p. 9, 17 Cal.Rptr.2d 480; In re Marriage of Gavron (1988) 203 Cal.App.3d 705, 710, 250 Cal.Rptr. 148; In re Marriage of Norvall (1987) 192 Cal.App.3d 1047, 1060, 237 Cal.Rptr. 770.) In determining whether a change of circumstances has occurred, the trial court is required to reconsider the same standards and criteria set forth in former section 4801 and now Family Code section 4320 ³ it considered in making It is undisputed it has long been the rule the trial court could consider a supporting spouse's earning capacity when determining spousal support. However, several courts have applied this rule only where the supporting spouse has demonstrated a willful intention to avoid fulfilling familial financial support obligations through deliberate misconduct. (In re Marriage of Meegan, supra, 11 Cal.App.4th at p. 163, 13 Cal.Rptr.2d 799; In re Marriage of Regnery (1989) 214 Cal.App.3d 1367, 1371, 263 Cal.Rptr. 243; see also Philbin v. Philbin (1971) 19 Cal.App.3d 115, 121, 96 Cal.Rptr. 408.) In In re Marriage of Simpson (1992) 4 Cal.4th 225, 233, 14 Cal.Rptr.2d 411, 841 P.2d 931, the Supreme Court acknowledged a number of decisions would permit a trial court to consider a supporting spouse's earning capacity, as opposed to actual income, only where the supporting spouse deliberately suppresses income to avoid support obligations. However, the court did not resolve whether a trial court's authority to consider the supporting spouse's earning capacity is so limited, because the trial court there had found deliberate conduct by the father primarily motivated to avoid family support obligations, a finding amply supported by substantial evidence. (Id. at pp. 233-234, 14 Cal.Rptr.2d 411, 841 P.2d 931.) Nevertheless, the Supreme Court explained:

                said that no judge reasonably could have made the same order.' "  (In re Marriage of Meegan (1992) 11 Cal.App.4th 156, 161, 13 Cal.Rptr.2d 799, quoting In re Marriage of Rome (1980) 109 Cal.App.3d 961, 964, 167 Cal.Rptr. 351;  see former § 4801 2.)  Similarly, whether a spousal support order should be modified is a matter within the sound discretion of the trial court, predicated upon a showing of a material change of circumstances since the last spousal [39 Cal.App.4th 77] support order.  (In re Marriage of Meegan, supra, 11 Cal.App.4th

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