Bufkin v. Bufkin CA2/1 ( 2016 )

Filed 2/26/16 Bufkin v. Bufkin CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
ANITA JEAN BUFKIN, B262030
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PD055429)
v.
GREGERY EDWARD BUFKIN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Susan L.
Lopez-Giss, Judge. Affirmed.
Law Offices of T. Matthew Phillips and T. Matthew Phillips for Defendant and
Appellant.
Law Offices of Davisson & Davisson, Daniel B. Davisson and Sandra R. Davisson
for Plaintiff and Respondent.
——————————
Gregery Edward Bufkin (Gregery1) appeals from a postjudgment order denying
him spousal support. Gregery contends that the trial court erred because its decision was
“based solely on a domestic violence restraining order” entered against him
postjudgment. We disagree. The record shows that the trial court based its denial on
factors unrelated to the restraining order, including whether Gregery was disabled and
unable to work. Because the trial court did not abuse its considerable discretion in
denying spousal support to Gregery, we affirm.
BACKGROUND
I. The dissolution action
Gregery and Anita Jean Bufkin (Anita) were married on May 31, 1986. Twenty-
six years later, on January 21, 2013, they separated. On January 30, 2013, Anita filed for
divorce. Judge Lloyd C. Loomis conducted a bench trial from May 19-20, 2014. On
June 27, 2014, Judge Loomis issued his ruling.
On October 7, 2014—after the court had received the parties’ judgment package,
but before a judgment was issued—Anita filed a request for a domestic violence
restraining order against Gregery. On that same day a temporary restraining order was
issued (the TRO).
On October 15, 2014, a dissolution judgment was entered by the trial court,
dividing and assigning various assets and property to the parties. However, with regard
to spousal support, the trial court reserved the issue “for a later determination.” In
deferring its decision on spousal support, the court stated that Gregery “may very well be
entitled to spousal support,” but identified “several issues pending” that would affect a
spousal support determination, including the following: whether Gregery could
“physically perform his job” as a sheet metal worker; whether Gregery, if he was able to
work and found work, would “have to return the pension benefit he has received”; and
“the results of [Gregery]’s application for Social Security Disability.” The court did not
1 We refer to the Bufkins by their first names for the sake of clarity, intending no
disrespect.
2
discuss or otherwise refer to the TRO or to Anita’s pending request for a more permanent
restraining order in either the judgment or in any of its supporting attachments.
On December 5, 2014, the trial court granted Anita’s request for a domestic
violence restraining order against Gregery, prohibiting him from coming with 100 yards
of Anita, her home, car or workplace for two years.
II. The denial of spousal support
On November 24, 2014, Gregery moved for spousal support. In support of his
motion, Gregery stressed two facts: (1) the duration of his “long-term marriage”; and
(2) his “[e]mployability” or lack thereof. According to Gregery, he “was forced to retire
with a back injury” and “can no longer physically perform his former job duties.”2
Gregery noted, however, that his application for Social Security disability benefits had
been denied. Despite his purported “disability,” and despite the risk of losing future
pension benefits and being forced to repay “all benefits accrued to date,” Gregery averred
that, as he was only 53 years of age, he was actively “looking for work.” Although
Gregery provided supporting documentation for a number of other issues, such as his
monthly medical insurance costs, he did not provide any documentation regarding his job
search efforts. In addition, the documentation that he submitted regarding his “current
disability status,” did not show that he was disabled, but only that he had applied for
disability benefits and was currently appealing the denial of his application.
On December 22, 2014, Anita filed her opposition to the motion, advancing two
central points: (1) the restraining order against Gregery; and Gregery’s ability to support
himself. With regard to this second point, Anita argued that while Gregery did retire, he
“did not retire on a disability pension.” She argued further that following his retirement,
Gregery was able to get a full-time job with the Hart School District “that d[id] not
jeopardize his pension.”
2 Although Gregery identifies himself as a former “sheet metal worker,” the record
is silent with respect to what exact duties his former job required.
3
On January 2, 2015, Gregery filed his reply brief in support of his motion. With
regard to the restraining order, Gregery argued that the alleged abuse was, in his view,
quite minor—he merely removed the locks to the front door of the family home3—and,
as a result, Anita suffered “no damages,” “no injuries,” and no “out-of-pocket expense”
from the incident. In addition, Gregery noted that he himself was a victim of domestic
violence by Anita in 2010, when she “pull[ed] a 9 mm. handgun on [him] and point[ed] it
at his head.”4 As for his employability, Gregery argued that although he “needn’t get a
job because . . . he is retired,” he, nonetheless, “actively seeks employment.” He argued
further that his job prospects, however, were “dismal” because of “his mountain of
employment-related medical bills, . . . plus his many prescription painkillers, not to
mention that [he] now has a restraining order on his record, which may extinguish any
hope of becoming employed.” Although he submitted documentation regarding his
medical bills, he once again elected not to submit any supporting evidence regarding his
job search or his purportedly “dismal” job prospects.
On January 9, 2015, Judge Susan Lopez-Giss heard oral argument on Gregery’s
motion for spousal support. Gregery focused his argument on the restraining order,
asserting that Anita had actually “failed to prove the allegations of her complaint” and
that the only reason why the order was issued was due to his spontaneous admission in
open court that he had in fact removed the locks. For her part, Anita focused her
argument on Gregery’s employability, arguing that Gregery’s retirement was “not a
disability retirement” and that his application for Social Security disability benefits had
been denied.
3 In opposition to Anita’s request for reimbursement for certain repairs to their
home that she authorized, Gregery submitted an email to a third-party contractor in which
he stated that he was served with the TRO because he removed all of the bedroom doors
to their home.
4 Inhis reply papers, Gregery cited but did not provide a copy of a “L.A. County
Sherriff’s Department Report” relating to the 2010 handgun incident.
4
The trial court denied the motion, explaining that Gregery’s purported disability
did not prevent him from finding employment: “At this point in time, I’m going to
continue to reserve jurisdiction over spousal support. It’s [been] six months since the
[trial] and if there’s been an order that [you are] not disabled or Social Security says
you’re not disabled, you can appeal it. You need to get a job. And what I’ll tell you,
what is basically making me even more sure about this is you wrote a letter and you just
testified that you could do the repairs on your house.” On February 17, 2015, Gregery
filed a timely notice of appeal.
DISCUSSION
I. Standard of review
“[T]he ‘purposes of spousal support inevitably vary from case to case, depending
upon the parties and the facts and circumstances of the case.’ [Citation.] ‘The facts and
the equities in one case may call for no spousal support, or for very short-term
support . . . . At the other end of the spectrum are cases where the purpose of spousal
support is to provide financial assistance to the supported spouse until . . . death . . . . In
between are the myriad of factual circumstances which the trial court must consider in
making its order for purposes which vary from case to case.’” (In re Marriage of
Cheriton (2001) 92 Cal. App. 4th 269, 312 (Cheriton).)
“Given the variety of purposes to be served by spousal support, it follows that the
trial court must be invested with broad discretion in fashioning such awards.” (Cheriton,
supra, 92 Cal.App.4th at p. 312) “‘“[A]ppellate courts must act with cautious judicial
restraint in reviewing these orders.”’” (In re Marriage of Ackerman (2006) 146
Cal. App. 4th 191, 207.) “‘A trial court’s exercise of discretion will not be disturbed on
appeal unless, as a matter of law, an abuse of discretion is shown—i.e.,—where,
considering all the relevant circumstances, the court has “exceeded the bounds of reason”
or it can “fairly be said” that no judge would reasonably make the same order under the
same circumstances.’” (In re Marriage of Smith (1990) 225 Cal. App. 3d 469, 480, italic
omitted.)
5
II. The denial of spousal support was not an abuse of discretion
Family Code5 section 4330, subdivision (a), provides: “In a judgment of
dissolution of marriage . . . of the parties, the court may order a party to pay for the
support of the other party an amount, for a period of time, that the court determines is just
and reasonable, based on the standard of living established during the marriage, taking
into consideration the circumstances as provided in Chapter 2 (commencing with Section
4320).” In ordering or denying spousal support, “the trial court must consider and weigh
all of the circumstances enumerated in [section 4320], to the extent they are relevant to
the case before it.” (Cheriton, supra, 92 Cal.App.4th at p. 302, fn. omitted.) The very
first of the enumerated circumstances in section 4320 is “[t]he marketable skills of the
supported party.” (§ 4320, subd. (a)(1).) The other statutory factors include, inter alia,
the following: the needs of each party, based on the marital standard of living; the
obligations and assets of each party; the duration of the marriage; the ability of the
supported spouse to engage in gainful employment without undue interference with the
children’s interests; the age and health of the parties; the balance of hardships to the
parties; the goal that the supported party be self-supporting within a reasonable period of
time; and any other factors deemed just and equitable by the court. (See § 4320,
subds. (b)–(n).)
Among section 4320’s list of factors is a consideration of domestic violence.
Section 4320, subdivision (i), requires the trial court to consider “[d]ocumented
evidence . . . of any history of domestic violence” when ordering spousal support.
Section 4320, subdivision (m), provides: “The criminal conviction of an abusive spouse
shall be considered in making a reduction or elimination of a spousal support award in
accordance with Section 4324.5 or 4325.” Together, these provisions represent “a
legislative determination that victims of domestic violence not be required to finance
their own abuse.” (In re Marriage of Cauley (2006) 138 Cal. App. 4th 1100, 1107, fn.
5 All further statutory references are to the Family Code unless otherwise
indicated.
6
omitted.) In addition, the Family Code establishes a presumption that, unless rebutted,
operates to bar the making of an initial spousal support award. (See § 4325; Cauley, at
pp. 1107–1108.) In rebutting the presumption, the court may consider evidence of the
convicted spouse’s history as a domestic violence victim at the hands of the other spouse
and any other factors that it “deems just and equitable, as conditions for rebutting this
presumption.” (See § 4325, subd. (b); In re Marriage of Priem (2013) 214 Cal. App. 4th
505, 510.)
Here, the trial court’s decision to deny spousal support was not based “solely” or
even primarily on the restraining order.6 Rather, it was based on Gregery’s ability to
support himself. Given the evidence that was presented—Gregery’s relative youth, his
non-disability-related retirement, the denial of his application for Social Security
disability benefits, his ability to find postretirement full-time work that did not jeopardize
his pension, and his active search for employment—and given the evidence that was not
presented, such as evidence showing that Gregery had been repeatedly turned down for
employment, we cannot say that the trial court’s decision exceeded the bounds of reason
or that no judge would reasonably make the same order under the same circumstances.
In short, the trial court—contrary to Gregery’s core contention on appeal—denied
the motion for spousal support for reasons unrelated to the restraining order and, in so
doing, did not abuse its discretion. Accordingly, we affirm.
6 Indeed, because the focus was on Gregery’s employability, it appears that the
trial court implicitly found that Gregery had rebutted the presumption against spousal
support arising out of the restraining order, a presumption which the trial court was well
aware.
7
DISPOSITION
The order denying the request for spousal support is affirmed. Anita Jean Bufkin
shall recover her costs on appeal.
NOT TO BE PUBLISHED.
JOHNSON, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
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