McLain v. McLain (In re McLain)

• Decision Date: 06 January 2017
• Docket Number: E062884
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE the MARRIAGE OF Colleen and Bruce Y. MCLAIN. Colleen McLain, Respondent, v. Bruce Y. McLain, Appellant.

7 Cal.App.5th 262

212 Cal.Rptr.3d 537

IN RE the MARRIAGE OF Colleen and Bruce Y. MCLAIN.Colleen McLain, Respondent,

v.Bruce Y. McLain, Appellant.

E062884

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

Filed January 6, 2017

Thompson & Thompson and Jeffrey S. Valladolid, Claremont, for Appellant.

Zumbrunn Law Corporation, Gregory L. Zumbrunn and Richard D. Malone, Victorville, for Respondent.

OPINION

MILLER, J.

The family court entered a judgment of dissolution for the marriage of respondent Colleen McLain (Wife) and appellant Bruce Y. McLain (Husband). The family court (1) ordered Husband to pay Wife $4,000 per month in spousal support; (2) awarded Wife $5,500 in attorney's fees; and (3) denied Husband's request for reimbursement of alleged separate property contributions used to construct a residence (Fam. Code, § 2640 ).¹

Husband raises three issues on appeal. First, Husband contends the family court erred in awarding spousal support by concluding that Wife has a right to retire. Second, Husband contends the family court erred in awarding attorney's fees to Wife. Third, Husband asserts he sufficiently traced his separate property and therefore the family court erred by denying his request for reimbursement of his separate property. We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

Husband and Wife married on October 13, 2001. They separated on March 14, 2014. They did not share any children. In May 2014, Husband was 68 years old and Wife was 66 years old. Husband had worked as a firefighter. Wife had worked as a personal assistant and transaction coordinator for a real estate agent and broker. Wife was a licensed real estate agent, but never used her license.

Both Husband and Wife retired in 2005. At that time, Husband was ready to retire and urged Wife to retire as well so they could travel and she could spend time with her grandchildren. In 2005, Wife began training her daughter to take over Wife's job in the real estate office. Through 2011 or 2012, as payment for a loan, Wife continued working as a personal assistant two to five hours per week for the real estate agent/broker. However, Wife's primary focus since 2005 had been cooking, cleaning, laundry, and household chores. Wife was in good health. Wife had a monthly social security income of $746 less $198 for MediCare payments. Husband's retirement income was approximately $10,000 per month.

After retiring in 2005, Husband was busy working with a contractor on building a house for Husband and Wife in Big Bear City (the Big Bear house). There was not a mortgage on the house; it was built as cash was available from 2006 through 2011. The Big Bear house was approximately 3,900 square feet and had a stipulated value of $775,000. The lot on which the Big Bear house was built was purchased in 2003.

Wife owned a residence in Fawnskin, which she had owned since 1987. During Husband and Wife's marriage, the loan on the Fawnskin property was refinanced three times. The first refinance allowed approximately $95,000 to be taken out. The second refinance left approximately $100,000 in cash. The third refinance generated an extra $130,000 in cash. The cash from the refinancing, at least from the second and third refinancing, went into a joint account and was used for construction of the Big Bear house. During the construction period Husband and Wife always had joint accounts. The Fawnskin house was ultimately sold in a short sale.

Husband owned a residence in San Dimas, which he acquired in 1974 (the San Dimas house). In 2004, the San Dimas house was sold. Wife's name was added to the title of the San Dimas house at the time of the sale for title insurance purposes. Money from the sale of the San Dimas house went into a joint account and a portion of it was used to construct the Big Bear house. Husband had a "401-A" account and an IRA that he also used to pay for the construction. The cost of the Big Bear house was approximately $507,700.

The family court issued a ruling on submitted matter. In the written ruling, the family court wrote, in relevant part, "In this matter, the Court finds that [Wife] needs spousal support to help her meet her financial needs as well as to put her as close as possible to the marital standard of living. This Court does not believe that it is appropriate to impute income to [Wife]. No evidence was presented which would support an income to her, or that there were jobs available for which she qualified and could earn an income. Furthermore, she is retired, just as [Husband] is retired, with both of them beyond retirement age. The parties have a right to retire, and they did that. [Husband] knew [Wife] substantially retired in 2006, a year after he did, and that she fully retired in 2011. Their retirement has been part of the marital standard of living since well before the dissolution of marriage was filed, and [Wife] is not now going to be thrown out of retirement. For these same reasons, this Court will also not be issuing a Gavron warning to [Wife]." The court awarded Wife $4,000 per month in spousal support and $5,500 in attorney's fees.

DISCUSSION

A. RETIREMENT

1. CONTENTION

Husband contends the family court erred by concluding Wife has the same right to retire as Husband. Husband asserts Wife, as the supported spouse, has an obligation to become self-supporting and therefore does not have a right to retire.

2. BACKGROUND LAW

In In re Marriage of Reynolds (1998) 63 Cal.App.4th 1373, 74 Cal.Rptr.2d 636, this court discussed the issue of whether the supporting spouse (as opposed to the supported spouse) has a right to retire when the retirement could lead to a lower income. This court wrote, "Furthermore, we hold that no one may be compelled to work after the usual retirement age of 65 in order to pay the same level of spousal support as when he was employed." (Id . at p. 1378, 74 Cal.Rptr.2d 636.)

Section 4320 lists a variety of factors the family court should consider when ordering spousal support. Two of the factors are "[t]he age and health of the parties." (§ 4320, subd. (h).) The statute also provides the family court should consider "[t]he goal that the supported party shall be self-supporting within a reasonable period of time.... However, nothing in this section is intended to limit the court's discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties." (§ 4320, subd. (l ).) The family court may also take into account "[a]ny other factors the court determines are just and equitable." (§ 4320, subd. (n).)

3. INTERPRETING THE "AGE" FACTOR

The conflict in this case arises between the portion of the statute that authorizes the family court to consider "age," which could be interpreted as retirement age, and the portion of the statute that sets forth the goal of the supported party becoming self-supporting. In other words, can the family court determine that a supported spouse being of retirement age outweighs the "self-supporting" factor. In order to determine this, we need to understand what is meant by the "age" factor in the statute.

When interpreting a statute, we begin with the words in the statute, applying their usual and ordinary meaning and construing them in context. If the plain meaning of the statutory text is ambiguous, then we may turn to rules of construction or legislative history. (Mejia v. Reed (2003) 31 Cal.4th 657, 663, 3 Cal.Rptr.3d 390, 74 P.3d 166.)

The plain language of the statute reflects the family court is to consider "[t]he age and health of the parties" when ordering spousal support. (§ 4320, subd. (h).) For the age factor to have meaning, the family court would need to consider whether the parties are young and therefore presumably more likely to work and earn a living wage, or whether the parties are older and perhaps no longer working. In other words, the plain language of the statute reflects age is a factor in determining spousal support. The point of considering age when determining spousal support, in part, is that there comes an age when people commonly stop working.

The age of 65 is the customary retirement age. (In re Marriage of Morrison (1978) 20 Cal.3d 437, 454, 143 Cal.Rptr. 139, 573 P.2d 41 ; In re Marriage of Reynolds , supra , 63 Cal.App.4th at p. 1378, 74 Cal.Rptr.2d 636 ; In re Marriage of Shimkus (2016) 244 Cal.App.4th 1262, 1277, 198 Cal.Rptr.3d 799.) Thus, given the plain language of the statute, a relevant consideration for a court when ordering spousal support is the age of the parties, and the point of that factor is to determine if the parties are younger or older, and if the parties are older, whether they have reached the customary retirement age of 65.

4. WEIGHING THE FACTORS

"An award of spousal support is a determination to be made by the trial court in each case before it, based upon the facts and equities of that case, after weighing each of the circumstances and applicable statutory guidelines. [Citation.] In making its spousal support order, the trial court possesses broad discretion so as to fairly exercise the weighing process contemplated by section 4320, with the goal of accomplishing substantial justice for the parties in the case before it. 'The issue of spousal support, including its purpose, is one which is truly personal to the parties.' [Citation.] In awarding spousal support, the court must consider the mandatory guidelines of section 4320. Once the court does so, the ultimate decision as to amount and duration of spousal support rests within its broad discretion and will not be reversed on appeal absent an abuse of that discretion. [Citation.] 'Because trial courts have such broad discretion, appellate courts must act with cautious judicial restraint in reviewing these orders.' " (In re Marriage of Kerr (1999) 77 Cal.App.4th 87, 93, 91 Cal.Rptr.2d 374, fn. omitted.)

Under section 4320, the family court is to consider: (1) "[t]he...