Marriage of Valen CA1/1 ( 2022 )

Filed 10/17/22 Marriage of Valen CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
In re Marriage of KELLY VALEN
and STEPHEN VALEN.
KELLY B. VALEN,
Appellant, A164029
v.
(Marin County
STEPHEN J. VALEN, Super. Ct. No. FL2101058)
Respondent.
Appellant Kelly B. Valen appeals from an order declining to increase
the amount she is owed for temporary spousal support from her former
spouse, respondent Stephen J. Valen. Kelly argues that the family court
abused its discretion because in calculating the amount of support it did not
impute to Stephen the value of his housing, which is provided to him without
charge by his employer, the United States Department of State.1 We affirm.
For clarity, we refer to the parties by their first names. (In re
1
Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 817, fn. 1.)
1
FACTUAL AND PROCEDURAL BACKGROUND
The parties were married in September 1993, and had been married for
26 years when they separated in late 2019. Stephen petitioned for divorce in
March 2021.
Both parties are members of the State Bar of California, and early in
their marriage they worked as attorneys. They have four adult children. At
the time Stephen filed for dissolution, the children were 25, 24, and 21 years
old (the youngest are twins). In 2003, Kelly left the practice of law to become
a full-time homemaker. She also published a book in 2010, for which she
received $175,000. Since 2009, Stephen has been employed by the United
States Department of State as a commissioned officer of the Foreign Service.
He has been assigned to various diplomatic postings abroad, and the family
has lived in Bangkok, Vancouver, and Paris. Stephen also completed
unaccompanied year-long assignments in Afghanistan and Pakistan.
After Stephen was assigned to Pakistan in 2018, Kelly moved to a one-
bedroom apartment in Mill Valley that she sublet from her sister and
brother-in-law. Reportedly, the monthly rent is $1063.2 She occasionally
hosts the parties’ adult children. Since moving to Mill Valley, she has yet to
secure employment.
Stephen’s most recent posting was to Bogota, Colombia, where he lived
in an apartment assigned to him by the Department of State.3 According to
Stephen, personnel who are posted in Colombia are required to accept
assigned housing, which is provided to them at no charge. Stephen stated he
2 Kelly characterizes this amount as “unusual below-market rent.”
Stephen indicated he was to be reassigned to Washington D.C. in
3
August 2022.
2
has not received a monetary housing allowance since 2015, when he was
posted to Vancouver.
In July 2021, Kelly filed a request seeking, among other things, an
order requiring Stephen to pay guideline temporary spousal support with an
“upward deviation” for a total of $4,840 per month. She claimed that
Stephen’s monthly salary was $12,099. In seeking increased support, she
emphasized that Stephen was living in a large apartment in Bogota supplied
to him by the government free of charge. She asserted that the value of his
housing should be imputed to him as income for purposes of calculating
support.4
The parties’ income and expense declarations show that the only source
of income available since the time of separation in 2019 has been Stephen’s
salary. Stephen disclosed that he currently has no rent or mortgage
expenses. In support of his disclosure, he attached his federal earnings
statements.
After reviewing the parties’ financial disclosures and supporting
documents, as well as Kelly’s extensive moving papers, the family court
declined to order enhanced spousal support, instead ordering Stephen to pay
Kelly guideline temporary spousal support of $3,489 per month based on the
court’s DissoMaster calculation.5
The family court’s order was entered on September 1, 2021. It requires
Stephen to pay $3,489 in spousal support per month “continuing until either
4On appeal, Kelly represents that the value attributable to Stephen’s
housing is $58,700 per year.
5 “DissoMaster is a computer software program widely used by courts to
set child support and temporary spousal support.” (Namikas v. Miller (2014)
225 Cal.App.4th 1574, 1578, fn. 4.)
3
Party’s death, wife’s remarriage, settlement, trial, or further order of the
Court, whichever shall occur first.” Kelly timely moved for reconsideration of
the order, and her motion was denied on October 27, 2021. At the hearing on
the motion for reconsideration, the court explained that there was no law
requiring it to “add as income available for support a non-monetary benefit
received by an employee,” especially in the context of spousal support. This
appeal followed.
DISCUSSION
A. Kelly’s Contentions
Kelly asserts that the family court erred in declining to impute the
value of Stephen’s employer-provided housing to him as income for purposes
of calculating temporary spousal support. She further contends that the
court improperly categorized his housing as an expense, rather than as
income. Finally, she claims the court’s order is unsupported by substantial
evidence because Stephen failed to fully comply with disclosure rules with
respect to the value of his Bogota living arrangement. We are persuaded by
none of these arguments.
B. Applicable Law and Standard of Review
Temporary spousal support is governed by Family Code section 3600,6
which states, in pertinent part, that “[d]uring the pendency of any proceeding
for dissolution of marriage . . ., the court may order . . . either spouse to pay
any amount that is necessary for the support of the other spouse.” (§ 3600.)
“Awards of temporary spousal support rest within the broad discretion of the
trial court and may be ordered in ‘any amount’ [citation] subject only to the
moving party’s needs and the other party’s ability to pay. [Citation.]
Permanent support, by contrast, is constrained by numerous statutory factors
6 All undesignated statutory references are to the Family Code.
4
set out in section 4320.” (In re Marriage of Murray (2002) 101 Cal.App.4th
581, 594, disapproved on another ground in Conservatorship of O.B.
(2020) 9 Cal.5th 989, 1010, fn. 7.)
“ ‘ “Whereas permanent spousal support ‘provide[s] financial
assistance, if appropriate, as determined by the financial circumstances of
the parties after their dissolution and the division of their community
property,’ temporary spousal support ‘is utilized to maintain the living
conditions and standards of the parties in as close to the status quo position
as possible pending trial and the division of their assets and obligations.’
[Citations.]” [Citation.] The court is not restricted by any set of statutory
guidelines in fixing a temporary spousal support amount.’ ” (In re Marriage
of Samson (2011) 197 Cal.App.4th 23, 29.) “Rather, in exercising its broad
discretion, the court may properly consider the ‘big picture’ concerning the
parties’ assets and income available for support in light of the marriage
standard of living.” (In re Marriage of Wittgrove (2004) 120 Cal.App.4th
1317, 1327 (Wittgrove).) Whether to impute income to the supporting spouse
is necessarily a part of that exercise of the court’s broad discretion in
determining an appropriate amount of support. (In re Marriage of Sorge
(2012) 202 Cal.App.4th 626, 642-643; In re Marriage of Cheriton (2001)
92 Cal.App.4th 269, 301; In re Marriage of Schlafly (2007) 149 Cal.App.4th
747, 753 (Schlafly).)
Although no explicit statutory standards govern the calculation of
temporary spousal support, the family court may properly use “local rules or
guidelines that provide ‘standardized temporary spousal support schedules’
that mark appropriate awards for spousal support based solely on the parties’
incomes with adjustments for any child support.” (Wittgrove, supra,
120 Cal.App.4th at p. 1327.) Former Marin County Superior Court Local
5
Family Rules, rule 6.14 (now rule 7.14)7 provides the following guideline: “In
cases where the recipient of spousal support is not receiving child support
from the same payor, the presumed temporary spousal support will be 40% of
the net income of the payor less 50% of the net income of the payee.”
(Rule 7.14 (B)(1).)
The standard of review that applies to an order for temporary spousal
support is abuse of discretion. (Wittgrove, supra, 120 Cal.App.4th at p. 1327.)
“Subject only to the general ‘need’ and ‘the ability to pay,’ the amount of a
temporary spousal support award lies within the court’s sound discretion,
which will only be reversed on appeal on a showing of clear abuse of
discretion.” (Ibid.) As one appellate court explained, “ ‘The abuse of
discretion standard is not a unified standard; the deference it calls for varies
according to the aspect of a trial court’s ruling under review. The trial court’s
findings of fact are reviewed for substantial evidence, its conclusions of law
are reviewed de novo, and its application of the law to the facts is reversible
only if arbitrary and capricious.’ ” (In re Marriage of Walker (2012)
203 Cal.App.4th 137, 146.)
C. The Family Court Did Not Misapply the Law
Kelly contends that the family court abused its discretion by failing to
consider the law and evidence that she provided below regarding whether
Stephen’s free housing should be imputed to him as income in the court’s
DissoMaster calculation. But her legal argument relies almost exclusively on
section 4058, subdivision (a)(3) and related cases that address the rules
regarding imputing employer-provided housing in the context of child
7All undesignated rule references are to the Marin County Superior
Court Local Family Rules.
6
support, not spousal support. Because this case does not involve child
support, her arguments are unconvincing.
Section 4058 is part of the legislation that established California’s
uniform child support guidelines. Section 4050 states: “In adopting the
statewide uniform guideline provided in this article, it is the intention of the
Legislature to ensure that this state remains in compliance with federal
regulations for child support guidelines.” (Italics added.) In this context,
section 4058, subdivision (a) defines “[t]he annual gross income of each
parent.” (Italics added.) Subdivision (a)(3) defines gross income as including
“[i]n the discretion of the court, employee benefits or self-employment
benefits, taking into consideration the benefit to the employee, any
corresponding reduction in living expenses, and other relevant facts.”
Although Kelly argues that section 4058 broadly applies to income
determination in all divorce proceedings, by its terms, the statute has no
direct application to temporary spousal support, which, as noted above, is
provided for under section 3600. Likewise, the cases Kelly principally relies
on, In re Marriage of Schulze (1997) 60 Cal.App.4th 519 (Schulze) and In re
Marriage of Loh (2001) 93 Cal.App.4th 325 (Loh), are of questionable
relevance as neither case concerns temporary spousal support.
In Schulze, the appellant challenged an award of child support and
permanent spousal support that took more than 83 percent of his after-tax
monthly monetary income. (Id. at p. 522.) In part, the appellant asserted
that the family court erred in including as income a $600 rent reduction that
he received from his parents, who were also his employers. (Id. at p. 528.)
The appellate court held that the imputation of rent could be classified as
employment compensation for purposes of calculating child support under
section 4058, subdivision (a)(3). (Ibid.)
7
Similarly, in Loh, supra, the appellant appealed from a child support
modification order.8 (Id. at p. 329.) In that case, the obligee mother sought
an increase in child support based on evidence of the father’s “lifestyle” which
was allegedly subsidized by his girlfriend. (Id. at p. 327.) The appellate court
concluded the trial court erred in finding the father’s income was greater
than what the evidence established, and in departing from a calculation
based on the income reported in the father’s tax returns. (Id. at p. 333.) The
court further considered how the trial court should proceed when significant
nontaxable benefits are involved, such as when a parent has free housing:
“[T]he proper course was to first calculate the guideline amount in light of the
parents’ incomes as revealed by such evidence as tax returns, income and
expense declarations and pay stubs, and then, under section 4057,9 to adjust
the amount upward in light of the free housing benefit. Such an approach
respects the rebuttable correctness of the mechanically calculated guideline
amount, and allows child support awards to properly reflect the parents’
standard of living without doing violence to the word ‘income’ in a way that
8 In her reply brief, Kelly stresses that Loh did not expressly limit its
analysis to the child support context. However, the facts of the case involved
neither permanent nor temporary spousal support. Thus, the opinion does
not provide support for applying section 4058, subdivision (a)(3) in the
context of temporary spousal support. “It is axiomatic that an opinion does
not stand for a proposition the court did not consider.” (People v. Taylor
(2010) 48 Cal.4th 574, 626.)
9 Under section 4057, subdivision (b), the family court has discretion to
find special circumstances other than the statutory ones which would make
application of the guideline child support formula unjust or inappropriate.
(See Schlafly, supra, 149 Cal.App.4th at pp. 758–759 [augmentation of child
support guideline to account for father’s mortgage-free housing as a special
circumstances was permissible under section 4057, subdivision (b)(5)(B)].)
8
would make the Sheriff of Nottingham proud.” (Loh, supra, 93 Cal.App.4th
at pp. 335–336.)
Kelly does not cite to any cases suggesting that the guidelines
contained in section 4058 apply in the context of temporary spousal support,
nor has our researched disclosed any such cases. Rather, the cases support
the contrary view.
For example, in In re Marriage of Blazer (2009) 176 Cal.App.4th 1438(Blazer), the wife appealed from an order modifying temporary spousal
support and awarding permanent spousal support. (Id. at p. 1440.) She
argued that the family court erred in excluding from the husband’s income
certain business investments, which had the overall effect of lowering his
income. (Id. at pp. 1440–1441.) In upholding the lower court’s ruling, the
appellate court observed: “The spousal support statute does not define
income. ‘There are no statutes that address the computation of income for
the purpose of determining spousal support.’ [Citation.] [¶] This is in
contrast to the statutory provisions governing child support. As one
commentator notes, ‘there is not yet any authority’ applying the child support
definition to spousal support.” (Id. at p. 1445, fn. omitted.) Notwithstanding
this conclusion, Blazer elected to analyze the case under section 4058,
subdivision (a)(2)’s income exclusion for “ ‘expenditures required for the
operation of the business,’ ” but only after noting that both parties had raised
section 4058 without discussing whether the provision had any application to
spousal support awards. (Id. at p. 1448.)
In a footnote, Blazer pointed out that cases uniformly treat income
differently with respect to child support and spousal support, even though at
least one family law treatise has suggested that income should be treated the
same in both contexts: “Child support and spousal support serve different
9
purposes, implicate different policies, and are governed by different rules.
(Compare § 4053, subd. (e) [concerning child support, the legislative policy is
to treat ‘the interests of children as the state’s top priority’] with § 4320,
subd. (l) [concerning spousal support, the legislative policy is for the
supported spouse to become ‘self-supporting within a reasonable period of
time’]; compare § 4052 [for child support, ‘court shall adhere to the statewide
uniform guideline’] with § 4320, subd. (n) [for spousal support, court shall
consider enumerated circumstances including ‘other factors the court
determines are just and equitable’]; see also, e.g., In re Marriage of Pendleton
& Fireman (2000) 24 Cal.4th 39, 49 [public policy prohibits waiver of child
support but not spousal support]; In re Marriage of Lynn (2002)
101 Cal.App.4th 120, 130, fn. 7 [same]; In re Marriage of Cheriton, supra,
92 Cal.App.4th at p. 308 [when imputing income to the payee spouse, child
support order must ‘consider the children’s best interests’ but no such
requirement applies to spousal support order]; In re Marriage of Kerr (1999)
77 Cal.App.4th 87, 95–96 [‘child support awards must reflect a minor child’s
right to be maintained in a lifestyle and condition consonant with his or her
parents’ position in society after dissolution of the marriage’ while spousal
support orders require ‘consideration of the parties’ standard of living during
marriage’ only]; In re Marriage of Schulze, supra, 60 Cal.App.4th at pp. 528,
527 [guideline child support is highly regulated and ‘relatively fixed’ whereas
permanent spousal support orders must be ‘the product of a truly
independent exercise of judicial discretion’]; but see [2] Kirkland et al., Cal.
Family Law: Practice and Procedure, [(2009) Spousal Support Orders],
§ 51.33, p. 51-31 [considering it ‘reasonable that the same rules’ defining
income for child support purposes ‘would apply to spousal support’].)”
(Blazer, supra, 176 Cal.App.4th at p. 1446, fn. 3.) We follow the weight of
10
authority and conclude that family courts are not governed by section 4058
when determining temporary spousal support, particularly in cases such as
this where child support is not at issue.
Kelly also faults the family court’s observation that Stephen’s housing
cannot be alienated, contending that “there is no statutory or case law
support for [the] argument . . . that employer provided ‘free housing’ must be
‘monetized into cash’ to be included as income for temporary spousal
support.” On appeal, however, it is her burden to supply this court with
authority supporting her position that the family court is required to
determine the cash value of employer-provided housing and impute this
value to the supporting spouse when determining temporary spousal support.
Significantly, as noted above, it is well-settled that the family court is not
restricted by any set of statutory guidelines in fixing a temporary spousal
support amount. (See Wittgrove, supra, 120 Cal.App.4th at p. 1327.)
Kelly also relies on cases involving support awards for military families
who receive government-subsidized housing, such as In re Marriage of
Stanton (2010) 190 Cal.App.4th 547. In Stanton, the father was a member of
the United States Navy. In calculating temporary child and spousal support,
the family court included in his gross income his nontaxable military
allowances (basic allowances for housing and subsistence) which he received
in cash as part of his paycheck.10 (Id. at p. 552.) The central contention on
appeal was whether Congress intended to disallow a state court’s inclusion of
such military allowances as part of a party’s gross income for purposes of
10We observe that Kelly admits there is no evidence that Stephen’s
housing can be monetized into cash to pay her support. Nor does she contest
that Stephen was required to live in his assigned apartment while serving in
Bogota.
11
family support since, under federal law, such allowances are not taxable or
subject to wage garnishment. (Id. at p. 551.) Stanton concluded that federal
preemption was inapplicable to military allowances, and that such
allowances could be included as income. (Id. at p. 560.) The case does not
hold that a family court is required to impute the value of free housing as
income to a supporting spouse when determining temporary spousal support
under section 3600.
In her reply brief, Kelly asserts that section 4058 is not limited to child
support calculations because section 2101, subdivision (c) recognizes that a
working spouse must disclose “income from whatever source derived, as
provided in section 4058” when filing disclosure statements in dissolution
proceedings. (Italics added.) She contends that this disclosure requirement
makes section 4058 applicable to both child and spousal support awards. She
also emphasizes that the DissoMaster is used to determine guideline income
for both child support and temporary spousal support awards, and that
rule 7.13(b)(2) requires parties to disclose all “in kind” income as part of their
preliminary financial disclosures, without reference to whether child or
spousal support is at issue. But while it is true that a party is required to
disclose all pertinent sources of income in divorce actions, it does not
necessarily follow that the family court is required to include the same
sources of income in calculating temporary spousal support as it would in
calculating child support.
Here, the parties have no minor children and child support is not at
issue. Because section 4058, subdivision (a)(3) has no direct application to
this case, and because Kelly does not cite to any case holding that temporary
spousal support determinations are governed by that subdivision, we
conclude Kelly has failed to demonstrate that the family court erred in failing
12
to impute the monetary value of Stephen’s free housing as income for
purposes of calculating temporary spousal support.11
D. Designating Free Housing as an “Expense” or “Income”
Kelly argues that the family court erred in concluding that Stephen’s
free housing could not be including in calculating temporary spousal support
because it was an expense, not income. But, to be clear, the court’s
conclusion did not cause the court to reduce Stephen’s income, it merely lead
the court to set his housing expenses at zero when it ran the DissoMaster.
In making her argument, Kelly again relies on section 4058, subdivision
(a)(3) for the proposition that free employer housing can be considered
“imputed income.” Because the court was not required by this statute to
impute the value of Stephen’s housing as income to him in calculating
temporary spousal support, it did not err in categorizing his housing as a zero
expense, rather than as a positive source of income.
E. Substantial Evidence
Lastly, Kelly contends that the family court’ ruling was not based on
substantial evidence because the court failed to require Stephen to comply
with his financial disclosure obligations. She argues that Stephen was
required under rule 7.13(B)(2) to provide all relevant facts related to any “in-
kind” employment benefit when he submitted his income and expense
11 In so concluding, we do not suggest that family courts are precluded
from considering employer-provided housing as income for purposes of
calculating temporary spousal support. Where there are “unusual facts or
circumstances,” the family court has the discretion to apply local spousal
support guidelines “as modified by such facts or circumstances.” (In re
Marriage of Burlini (1983) 143 Cal.App.3d 65, 70.)
13
declaration, including the valuation of his housing benefit, which she asserts
is available from the State Department.
Each party to a proceeding for dissolution of marriage or legal
separation is required to fully disclose in the early stages of the proceeding
all assets and liabilities in which he or she may have an interest, whether
community or separate, and must fully disclose his or her income and
expenses. (§ 2100, subd. (c).) In addition, each party has a continuing duty to
augment those disclosures immediately and fully upon any material change.
(Ibid.) These disclosure duties are declared by statute to be fiduciary in
nature. (§§ 2102, subds. (a) & (c), 721, subd. (b); see also § 1100, subd. (e).)
We need not consider whether Stephen violated his disclosure
obligations as we have already concluded that the family court was not
required to consider his government housing as imputed income for purposes
of calculating temporary spousal support.12 Moreover, to the extent Kelly
urges that remand is necessary at this stage to ensure Stephen’s full
compliance with rule 7.13(B)(2), we observe that the issue is forfeited as she
did not move to compel disclosure below. While the Family Code provides an
“expedited discovery scheme,” (Loh, supra, 93 Cal.App.4th at p. 330), “the
Legislature did not obviate the traditional requirements of civil practice that
discovery requests must be enforced.” (Ibid.) If a party fails to produce
required documents, the other party may compel production in the manner
specified in the Civil Discovery Act, i.e., by moving to compel production and
seeking monetary, evidentiary or issue sanctions. (§ 3666; see Code Civ.
12 Kelly’s February 22, 2022 request for judicial notice of Department of
State documents pertaining to Living Quarters Allowances for its employees
is denied as unnecessary to our decision.
14
Proc., §§ 2031.300 [motion to compel response], 2031.310, subds. (a), (h) & (i)
[motion to compel further response; sanctions].)
In short, Kelly has failed to demonstrate that the family court’s
September 1, 2021 temporary spousal support order constituted an abuse of
discretion.
DISPOSITION
The temporary spousal support order is affirmed. Stephen is to recover
his costs on appeal.
15
_________________________
Humes, P.J.
WE CONCUR:
_________________________
Margulies, J.
_________________________
Banke, J.
In re Marriage of Valen A164029
16