Marriage of Jenkins CA4/1 ( 2021 )

Filed 2/23/21 Marriage of Jenkins CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of THOMAS and
JOHNNIE P. JENKINS.
D075902
THOMAS JENKINS, III,
Respondent, (Super. Ct. No. D516911)
v.
JOHNNIE P. JENKINS,
Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Pamela M. Parker, Judge. Affirmed.
John Knoll for Appellant.
Kristine C. Blagof for Respondent.
Johnnie P. Jenkins appeals from findings and an order after a hearing
in which the family court granted the request of Thomas Jenkins, III, for an
order modifying his spousal support obligation to her.1 As we explain,
Johnnie has not met her burden of establishing that the family court abused
its discretion. Accordingly, we affirm.
I. STATEMENT OF THE CASE
Johnnie and Thomas married in December 1992, and they separated in
March 2009. In a judgment filed in July 2011 (Judgment), the court
dissolved the parties’ marriage effective May 1, 2011. The Judgment followed
the parties’ stipulation that was “approved as to form and content” by
Thomas, Johnnie, and Johnnie’s attorney in May 2011 (Stipulation). (Some
capitalization omitted.) Among other issues, the Stipulation resolved, and
the Judgment ordered, spousal support. In full, based on the parties’
agreement, the court ordered as follows:
“[S]upport shall remain at $4000.00 a month family
support, per the July 21, 2010, orders, but that, consistent
with the parties’ stipulation it shall decrease to $979.00
child support and $2303.00 spousal support upon receipt of
advice that . . . .”
There are no issues relating to whether the parties received the “advice” that
triggered the termination of the family support and the commencement of the
separate obligations for child support and spousal support. Thus, we begin
with the understanding that the parties agreed to, and the court ordered,
payment of monthly spousal support from Thomas to Johnnie in the amount
of $2,303.
1 Johnnie and Thomas are former spouses who share the same surname.
In referring to them by their first names, we do so consistent with the parties’
briefing on appeal and intend no disrespect.
2
Almost six years later, in February 2017, Thomas filed a request for an
order to modify spousal support (RFO).2 In the RFO, Thomas requested that
the monthly support be terminated or, in the alternative, lowered from
$2,303 to $1,300, explaining the basis of this request as follows:
“Support orders [in the July 2011 Judgment] were based on
maintaining the standard of living in California, and also
issued a Gavron warning. . . . [Thomas] has paid support
. . . for a period of approximately eight (8) years, which at
this point is half the length of the marriage. . . . [M]ore
than enough time has passed for [Johnnie] to become self-
supporting, and she has not made any reasonable efforts to
do so. Additionally, [Johnnie] now lives in Georgia where
the cost of living is approximately half compared to
California. [Johnnie] does not need the same level of
support . . . in Georgia.” (Italics added.)
In support of his RFO (which included a four-page Judicial Council form
FL-157 spousal support declaration attachment setting forth facts under
preprinted headings for each of the subdivisions of Fam. Code, former
§ 43203), Thomas also submitted a declaration and a current income and
expense declaration.4
2 In the RFO, Thomas also requested a vocational evaluation for Johnnie.
At the hearing on the RFO, Thomas withdrew that request, and Johnnie
indicated that she “d[id]n’t care about the vocational evaluation.” Following
the hearing, the court ruled that Thomas had abandoned his request that
Johnnie be required to submit to a vocation evaluation.
3 Family Code section 4320 has been amended since Thomas filed his
RFO in February 2017. (Stats. 2018, ch. 938, § 1.) All undesignated
statutory references are to the Family Code.
4 To the extent this, or any other, evidence affects the issues on appeal,
we will set it forth as we discuss the issues at part II., post.
3
In May 2017, Johnnie filed a responsive declaration to the RFO in
which she (1) consented only to a modification of spousal support “based upon
the current incomes of the parties,” and (2) requested an award of attorney
fees and costs, which she supported by a declaration. Johnnie also submitted
a memorandum of points and authorities, an additional declaration, and a
current income and expense declaration.
In reply, Thomas submitted a memorandum of points and authorities.
At the hearing in June 2017, the parties did not present live testimony,
relying solely on the prior written submissions and the oral argument of
counsel. At the conclusion of the hearing, the court orally ruled that Thomas
established the requisite change of circumstances for the court to consider a
modification. The court then ruled that Thomas’s monthly spousal support
obligation would be reduced to $1,300 effective July 1, 2017, with a further
reduction to $1,000 effective July 1, 2018.
In March 2019, the family court filed written findings and an order
after hearing based on the June 2017 proceedings (FOAH). In particular, the
court made the following factual findings: “[Johnnie’s] decreased expenses
combined with unsuccessful and insufficient efforts to become self-supporting
constitute a change of circumstances”; and “Evidence supports a reduction of
support to $1,000, and to reduce impact the Court finds a step-down plan
appropriate.” The FOAH concluded with the following order: “[S]pousal
support paid from [Thomas] to [Johnnie is] reduced to $1,300 per month
effective July 1, 2017. Support shall then reduce to $1,000 per month
effective July 1, 2018.”5
5 The court also granted Johnnie’s request for attorney fees in the
amount she sought. Thomas did not oppose Johnnie’s request, and there is
no issue on appeal regarding the award of fees.
4
Johnnie timely appealed from the FOAH.
II. DISCUSSION
On appeal, Johnnie presents criticisms of various statements contained
in the FOAH, often without suggesting how or why the criticism entitles her
to relief in this appeal. We will first present certain general rules and
guidelines applicable in appeals from orders modifying spousal support, and
we will then consider how the statements in the FOAH to which Johnnie
objects affect the ultimate rulings. In doing so, as we explain, Johnnie did
not meet her burden of establishing reversible error.
A. Legal Principles
1. General Concepts
As a general rule, for so long as spouses are living together, they owe
each other a mutual duty of support. (§ 4300 [“Subject to [§ 3500 et seq.], a
person shall support the person’s spouse.”]; In re Marriage of Pendleton &
Fireman (2000) 24 Cal.4th 39, 52.) A spousal support award is not
mandatory in dissolution of marriage proceedings, because family courts have
discretion (within statutory parameters) to deny spousal support or to limit it
to an amount and duration that reflects the ability of both parties to provide
for their own needs. (Marriage of Pendleton, at p. 52.) That said, the parties
to a marriage dissolution action, like Johnnie and Thomas here, may agree to
the amount and duration of spousal support by filing a stipulation with the
family court in the action.6 (See § 3590; Marriage of Lynn, supra, 101
Cal.App.4th at p. 130.)
6 Where, as here, the stipulation is incorporated into a judgment of
dissolution of marriage, the parties’ written agreement “ceases to have any
independent legal significance; the parties’ rights and obligations are
5
“Except on written agreement of the parties to the contrary or a court
order terminating spousal support, the court retains jurisdiction indefinitely
in a proceeding for dissolution of marriage . . . where the marriage is of long
duration.” (§ 4336, subd. (a).) The parties here do not dispute that, for
purposes of section 4336 and the underlying modification proceedings,
because their marriage was one “of long duration” (§ 4336, subd. (b) [“a
marriage of 10 years or more” is one of long duration]), the family court had
jurisdiction to consider the RFO.
Spousal support awards may be modified throughout the support
period, except to the extent the parties have agreed otherwise (and except as
to amounts that accrued prior to filing an application for modification). (See
§§ 3603, 3651, subds. (c)(1), (d), 4333; In re Marriage of Hibbard (2013) 212
Cal.App.4th 1007, 1013.) The family court’s authority to modify spousal
support agreements is governed by sections 3590-3593, and section 3591
expressly authorizes modification of such agreements except to the extent the
parties have agreed otherwise.
Before the family court may consider whether to modify a spousal
support order, the party seeking the modification must first show a material
change of circumstances since the most recent order. (In re Marriage of T.C.
& D.C. (2018) 30 Cal.App.5th 419, 424 (Marriage of T.C.).) That is because
absent a change of circumstances, a motion for modification would be nothing
more than an “ ‘impermissible collateral attack on a prior final order.’ ”
(Marriage of T.C., at p. 424; accord, In re Marriage of Khera & Sameer (2012)
206 Cal.App.4th 1467, 1479 (Marriage of Khera).) Because a material change
governed by the judgment alone.” (In re Marriage of Lynn (2002) 101
Cal.App.4th 120, 130 (Marriage of Lynn).)
6
of circumstances often “means a reduction or increase in the supporting
spouse’s ability to pay and/or an increase or decrease in the supported
spouse’s needs” (In re Marriage of West (2007) 152 Cal.App.4th 240, 246
(Marriage of West)), in determining the sufficiency of the supporting party’s
showing of a material change of circumstances, the family court “considers all
factors affecting the supported spouse’s needs and the supporting spouse’s
ability to pay” (Marriage of T.C., at p. 424).
A material change of circumstances is required where, as here, the
amount of spousal support under consideration for modification was
established by the agreement of the parties. (In re Marriage of Dietz (2009)
176 Cal.App.4th 387, 396 (Marriage of Dietz); In re Marriage of McCann
(1996) 41 Cal.App.4th 978, 982.) When spousal support is governed by a
marital settlement agreement, the trial court’s determination of changed
circumstances must “ ‘ “ ‘give effect to the intent and reasonable expectations
of the parties as expressed in the agreement.’ ” ’ ” (Marriage of T.C., supra,
30 Cal.App.5th at p. 424.) “Likewise, the ‘ “trial court’s discretion to modify
the spousal support order is constrained by the terms of the marital
settlement agreement.” ’ ” (Ibid.) Except to the extent the parties agreed to
eliminate specified occurrences as a basis for modification, a change of
circumstances for spousal support modification purposes includes
“ ‘ “practically everything which has a legitimate bearing upon the present
and prospective matters relating to the lives of both parties.” ’ ” (In re
Marriage of Morrison (1978) 20 Cal.3d 437, 454.)
Upon the requisite showing of changed circumstances, the family court
then determines whether to modify the existing spousal support order by
“ ‘consider[ing] the same criteria set forth in Family Code section 4320 as [the
7
court] considered in making the initial order.’ ”7 (Marriage of Dietz, supra,
176 Cal.App.4th at p. 396.)
The family court has “broad discretion in deciding whether to modify a
spousal support order based upon changed circumstances.” (In re Marriage of
Swain (2018) 21 Cal.App.5th 830, 836.) In exercising this discretion,
however, “a trial court must ‘follow established legal principles and base its
findings on substantial evidence.’ ” (Ibid.; accord, Marriage of T.C., supra, 30
Cal.App.5th at p. 423 [“ ‘ “ ‘ “So long as the court exercised its discretion along
legal lines, its decision will not be reversed on appeal if there is substantial
evidence to support it.” ’ ” ’ ”].) Accordingly, we will review the FOAH for an
abuse of discretion. (Marriage of T.C., at p. 423.) In In re Marriage of
Brewster & Clevenger (2020) 45 Cal.App.5th 481 (Marriage of Brewster), the
court described as follows a less technical description of this standard of
review: “A trial court abuses its discretion when it exceeds the ‘bounds of
reason’ in exercising it, having considered all the circumstances before it”;
7 Section 4320 currently provides: “In ordering spousal support under
this part, the court shall consider all of the following circumstances: [¶] (a)
. . . [¶] . . . [¶] (n) . . . .” This statute was amended to provide as it now
reads after the court’s oral ruling at the hearing on the RFO (June 2017) and
before the FOAH was filed (Mar. 2019). (Stats. 2018, ch. 938, § 1, eff. Jan. 1,
2019.) The only change to former section 4320 was to subdivision (i), which
deals with the effect of “documented evidence of any history of domestic
violence” on a spousal support award. (Compare Stats. 2015, ch. 137, § 1, eff.
Jan. 1, 2016, with Stats. 2018, ch. 938, § 1, eff. Jan. 1, 2019.) Domestic
violence was not an issue in the Judgment, and the pleadings in support of
and in opposition to the RFO do not mention domestic violence. Thus, we
shall refer to current section 4320.
Section 4320 has 14 subdivisions, (a)-(n). In the text, post, we shall
identify only those subdivisions that are necessary for the disposition of this
appeal.
8
i.e., an exercise of discretion “ ‘that is “so irrational or arbitrary that no
reasonable person could agree with it.” ’ ” (Id. at p. 500 [spousal support].)
All intendments and presumptions are in favor of the FOAH, and
Johnnie (as the appellant) has the burden of establishing reversible error.
(In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133 (Marriage of
Arceneaux); In re Marriage of Garcia (2017) 13 Cal.App.5th 1334, 1344
[spousal support].) For an error to result in a reversal, with exceptions not
applicable here, the appellant must also establish prejudice (Code Civ. Proc.,
§ 4758) that results in a “miscarriage of justice” (Cal. Const., art. VI, § 139).
(Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069.) A “miscarriage of
justice” may be found only when the appellate court, after examining the
entire cause, including the evidence, concludes that the appellant met her
8 Code of Civil Procedure section 475 provides in full: “The court must,
in every stage of an action, disregard any error, improper ruling, instruction,
or defect, in the pleadings or proceedings which, in the opinion of said court,
does not affect the substantial rights of the parties. No judgment, decision, or
decree shall be reversed or affected by reason of any error, ruling, instruction,
or defect, unless it shall appear from the record that such error, ruling,
instruction, or defect was prejudicial, and also that by reason of such error,
ruling, instruction, or defect, the said party complaining or appealing
sustained and suffered substantial injury, and that a different result would
have been probable if such error, ruling, instruction, or defect had not
occurred or existed. There shall be no presumption that error is prejudicial,
or that injury was done if error is shown.”
9 Article VI, section 13, of the California Constitution provides in part:
“No judgment shall be set aside . . . in any cause, on the ground of . . . the
improper admission or rejection of evidence, or for any error as to any matter
of pleading, or for any error as to any matter of procedure, unless, after an
examination of the entire cause, including the evidence, the court shall be of
the opinion that the error complained of has resulted in a miscarriage of
justice.”
9
burden of demonstrating “ ‘that it is reasonably probable a result more
favorable to that party would have been reached in the absence of the error.’ ”
(In re Marriage of Kent (2019) 35 Cal.App.5th 487, 496; accord, In re
Marriage of Goddard (2004) 33 Cal.4th 49, 56; Pool, at p. 1069; Cal. Const.,
art. VI, § 13; Code Civ. Proc., § 475.)
B. Analysis
Johnnie describes as follows the five issues she raises on appeal:
(1) “The Judgment’s terms limited the discretion of the trial court”;
(2) “Johnnie’s capacity to maintain the marital standard of living”; (3) “The
trial court failed to consider Thomas’[s] post-marital income increases”;
(4) “The ‘Gavron’ warning”; and (5) “The step-down and Johnnie’s income
prospects.” (Some capitalization omitted.) We address the issues in the order
Johnnie raises them in her opening brief on appeal.
1. The Effect of the Judgment on the Family Court’s Exercise of
Discretion
Johnnie argues: “[W]hen the prior support order is rooted in the
parties’ stipulated judgment, the trial court’s discretion to modify is
constrained by the terms of the agreement; it cannot ‘remake’ the agreement
in ways inconsistent with the parties’ expectations.” (Citing Marriage of
Khera, supra, 206 Cal.App.4th at p. 1476.10) She contends that the following
two statements in the FOAH “stray beyond those constraints”:
10 Johnnie’s citation to Marriage of Khera, supra, 206 Cal.App.4th at
page 1476, in support of the statement in the text is misleading. The actual
quotation provides in full: “ ‘There is authority that the parties have the
power to decide whether a particular event will or will not be deemed a
material change of circumstances for purposes of modification of a support
order.’ ” (Ibid., quoting Marriage of West, supra, 152 Cal.App.4th at p. 247.)
In the present case, the Stipulation does not contain an agreement as to what
10
• “The parties had a middle-class standard of living during the marriage”
(FOAH ¶ 1.a.); and
• “The support [Johnnie] was originally awarded ($2,303 per month) was
sufficient to provide her the marital standard of living” (FOAH ¶ 1.o.).
We disagree; Johnnie does not explain how either of those findings, or both
together, “ ‘remake’ ” the parties’ Stipulation.
Johnnie complains that the definition of “ ‘marital standard of living’ ”
for purposes of paragraph 1.a. is “abstruse.”11 Conceding that “[t]he finding
of a ‘middle-class standard of living’ is, by itself, a harmless error,” she then
segues to paragraph 1.o., arguing that the finding (that the $2,303 “was
sufficient to provide her the marital standard of living”) is ambiguous as to
time. According to Johnnie, the ambiguity is: whether paragraph 1.o. is a
finding that the Judgment provides the parties agreed to monthly spousal
support of $2,303 in order “to provide her the marital standard of living”; or
whether, based on the RFO pleadings and evidence, paragraph 1.o. is a
current section 4320, subdivision (d) finding “as to the needs of each party as
will or will not be sufficient to establish a material change of circumstances
for purposes of modifying spousal support.
11 In the next sentence of her brief, however, Johnnie acknowledges that
California law describes the “marital standard of living” as “ ‘the general
station in life enjoyed by the parties during their marriage,’ ” which is “not a
precise mathematical calculation.” (Citing and quoting In re Marriage of
Smith (1990) 225 Cal.App.3d 469, 475.) The Smith court attributed this
explanation of the “marital standard of living” to the legislative history
associated with the enactment of Civil Code former section 4801,
subdivision (a), the predecessor to section 4320, subdivision (a). (Marriage of
Smith, at p. 475.)
11
of the date of the Judgment.”12 The significance of this distinction, Johnnie’s
argument continues, is that, at the time of the Judgment when the
community had monthly income of $11,574, the parties agreed that monthly
spousal support of $2,303—in addition to Johnnie’s monthly self-employment
income of $1,578, for a total monthly income of $3,881—“was sufficient to
provide her the marital standard of living.” Johnnie’s presentation then
concludes: “The court, per [Marriage of] Khera, [supra, 206 Cal.App.4th
1467,] is obligated to measure those recited facts against any material change
of circumstance since entry of the Judgment.”
Having provided no further explanation or argument, Johnnie forfeited
appellate consideration of the issue. (In re Marriage of Falcone & Fyke (2008)
164 Cal.App.4th 814, 830 (Marriage of Falcone) [“The absence of cogent legal
argument or citation to authority allows this court to treat the contentions as
waived.”]; Cal. Rules of Court, rule 8.204(a)(1)(B) [each point must be
supported “by argument and, if possible, by citation of authority”].) Stated
differently, having failed to establish that the family court did not include
Johnnie’s prior self-employment income ($1,578) when it determined that
Thomas established a material change of circumstances, Johnnie did not
meet her burden of establishing reversible error.
2. The Marital Standard of Living
Johnnie next challenges the following four findings of the FOAH on the
basis that each is unsupported by substantial evidence:
• “[Johnnie] states she had injuries [a]ffecting [the] amount she can
stand and lift with medical records that indicate orthopedic issues, but
12 Section 4320, subdivision (d) provides that, in ordering spousal support,
the family court shall consider “[t]he needs of each party based on the
standard of living established during the marriage.”
12
there is no evidence she is incapable of working at something that
would allow her to become self-supporting. Nonetheless, the Court
does consider the evidence presented in making its ruling” (FOAH
¶ 1.d.);
• “[Johnnie] was a licensed daycare provider with experience related to
that field and has done various administrative work, data entry,
supervising work and compliance work” (FOAH ¶ 1.e.);
• “Unclear whether [Johnnie] needs further education to pursue work in
[the] daycare industry. It appears from her experience that she is
already trained to be a manager for a daycare provider” (FOAH ¶ 1.f.);
and
• “[Johnnie] has marketable skills” (FOAH ¶ 1.g.).
More specifically, Johnnie argues that, the record lacks evidence of her
“capacity to maintain the standard of living established during the marriage,
taking into account her marketable skills, the job market for those skills, and
her health.” (Citing § 4320, subds. (a)(1), (a)(2), (h).13)
Initially, we reject any suggestion by Johnnie that the “factual
allegations in Thomas’[s] [RFO]” do not support the family court’s finding
that the parties had a middle-class standard of living during their marriage.
13 Section 4320, subdivision (a) provides that, in ordering spousal support,
the family court shall consider: “The extent to which the earning capacity of
each party is sufficient to maintain the standard of living established during
the marriage, taking into account all of the following: [¶] (1) The marketable
skills of the supported party; the job market for those skills; the time and
expenses required for the supported party to acquire the appropriate
education or training to develop those skills; and the possible need for
retraining or education to acquire other, more marketable skills or
employment. [¶] (2) The extent to which the supported party’s present or
future earning capacity is impaired by periods of unemployment that were
incurred during the marriage to permit the supported party to devote time to
domestic duties.”
Section 4320, subdivision (h) provides that, in ordering spousal support,
the family court shall consider “[t]he age and health of the parties.”
13
Thomas’s declaration testimony in support of the RFO (which contains
evidence, not allegations) provides more than substantial evidence to support
a finding of a middle-class standard of living.
Relying on the evidence of her health that she submitted in opposition
to the RFO,14 Johnnie argues that “[s]pousal support orders must reflect a
spouse’s present capabilities and employment opportunities; the court cannot
anticipate what ‘might’ transpire in the future.” (Citing In re Marriage of
Baker (1992) 3 Cal.App.4th 491, 498 [“there was no way to accurately predict
[the supported party’s] future earnings because the real estate market was
volatile and subject to economic factors beyond her control”].) In this regard,
the FOAH reflects an informed exercise of the family court’s discretion in
that it: (1) expressly acknowledges Johnnie’s description of her physical
limitations; (2) finds Johnnie had experience providing child daycare services
and “has done various administrative work, data entry, supervising work[,]
and compliance work”; (3) finds Johnnie is currently “trained to be a manager
for a daycare provider”; and (4) emphasizes generally that Johnnie “has
marketable skills.”
14 The entirety of the medical evidence Johnnie submitted consisted of
(1) four sentences from her declaration and (2) August 2016 “records from
Resurgens Orthopaedics” that she lodged. Johnnie testified: “In November,
2015, . . . I injured my left knee. I am limited to lifting no more than 10
pounds, and cannot continuously sit, walk, or bend for over 15 minutes at a
time. My left knee is still weak and if I walk or sit too long it hurts and I
have to hop. . . . [¶] . . . [¶] On Sunday, July 10, 2016, . . . [an accident]
injured my right knee and re-injured my left knee, leaving them in frequent
pain.” The record on appeal does not contain a copy of the orthopedic records,
and the appellate briefing does not indicate what they state.
At the hearing on the RFO, the court expressly found that, despite the
evidence Johnnie presented, “we don’t know the extent of her health
limitations.”
14
Johnnie contends that these findings, in particular those related to her
prior experience, are unsupported by substantial evidence because they are
“conclusions without factual support” or because they “state something
without specific supporting evidence” or “without providing the facts.” We
disagree.
First, Johnnie cites no authority (and our independent research has
disclosed none) that requires a family court to identify the evidence it relies
on when making factual findings. Even where a party properly requests a
statement of decision (Code Civ. Proc., § 632; Cal. Rules of Court,
rule 3.1590(d))—which was not done in this case—the court “is required only
to set out ultimate findings rather than evidentiary ones.”15 (Muzquiz v.
City of Emeryville (2000) 79 Cal.App.4th 1106, 1125.)
In any event, in his declaration in support of the RFO, Thomas testified
in detail as to Johnnie’s employment experience from 1987-2003 and her
additional experience owning and operating a small business during the
2004-2012 time period. Johnnie’s criticism of this evidence goes to its weight,
which we do not consider in our substantial evidence review. (Marriage of
Brewster, supra, 45 Cal.App.5th at p. 500 [“the trial court is the sole judge of
the credibility and weight of the evidence”]; see Haworth v. Superior Court
(2010) 50 Cal.4th 372, 385 [appellate courts give deference to trial courts’
factual findings “because those courts generally are in a better position to
15 Contrary to the suggestion in Johnnie’s reply brief, there is no
indication that the family court intended the FOAH to be a statement of
decision. (Cf., In re Marriage of Rising (1999) 76 Cal.App.4th 472, 476, fn. 7
(Marriage of Rising).) To the extent Johnnie is dissatisfied with the lack of
details regarding what she describes as her “present capabilities and
employment opportunities,” she had the opportunity to request such findings
in a statement of decision, but failed to do so.
15
evaluate and weigh the evidence”].) When reviewing the family court’s
factual findings for substantial evidence, “we accept as true all evidence
tending to establish the correctness of the trial court’s findings, resolving
every conflict in the evidence in favor of the judgment [or order on appeal].”
(In re Marriage of Ankola (2020) 53 Cal.App.5th 369, 380.) Under this
standard, “ ‘[t]he testimony of one witness, even that of a party, may
constitute substantial evidence’ ” (ibid.); and “the trial court may reject
evidence, even uncontradicted evidence, as unworthy of credence” (Marriage
of Brewster, at p. 500).
In closing, Johnnie argues that “[a] vocational evaluation would have
resolved the unspecific, vague allegations of what Johnnie could do to become
self-supporting.” Initially, we disagree with Johnnie’s characterization of
the evidence Thomas provided; his testimony contains facts, not “unspecific,
vague allegations.”16 Regardless, Johnnie cannot fault the family court for
failing to order a vocational evaluation that Thomas had originally requested.
Johnnie did not file any response to this request, at the hearing on the RFO
she indicated that she “d[id]n’t care about the vocational evaluation,” and at
no time did she join in Thomas’s request that she be evaluated vocationally.
Accordingly, on appeal Johnnie forfeited any objection to the family court’s
denial of a vocational evaluation. (See In re Marriage of Miotke (2019) 35
Cal.App.5th 849, 861-862.) Even if we assume that Johnnie needed a
16 For example, after presenting testimony regarding Johnnie’s skill and
experience in owning and operating a licensed in-home daycare center for
more than eight years, Thomas testified: “There is always a job market for
well-qualified, dependable childcare providers. Care.com currently has over
350 job listing[s] in Atlanta, GA, which [is] less than a thirty-minute
commute. Care.com lists 20 open positions in Fayetteville, which is a town of
less than 20,000 people. There is [a] high demand in this field.”
16
vocational evaluation to learn what she can do to become self-supporting
almost seven years after the Judgment, she cannot fault the court for denying
Thomas’s request that she be evaluated.
3. Thomas’s Post-separation Income
Johnnie next raises issues on appeal as to the family court’s finding at
paragraph 1.i. of the FOAH, which provides in full: “[Thomas] has increased
earnings, but it all occurred post-marriage.”
First, Johnnie complains that paragraph 1.i. of the FOAH “is a ruling
that as a matter of law post-marital earnings cannot be considered and the
ruling is erroneous.” We disagree. The statement is a finding of fact, not a
legal ruling, and elsewhere in her briefing, Johnnie correctly describes
paragraph 1.i. as a “finding.” Notably, Johnnie does not contend that this
finding is unsupported by substantial evidence.
Next, Johnnie criticizes a statement made by the family court at the
hearing on the FOAH. According to Johnnie, the court “found that the
support set in the Judgment was sufficient to meet her needs,” but “that
finding” is inconsistent with Marriage of Khera, supra, 206 Cal.App.4th 1467,
because “[t]he Judgment did not address that subject.” This argument fails
to establish error, since a family court’s “comments at oral argument may
never be used to impeach [the] final order.” (In re Marriage of Evilsizor &
Sweeney (2015) 237 Cal.App.4th 1416, 1431; accord, Transport Ins. Co. v. TIG
Ins. Co. (2012) 202 Cal.App.4th 984, 1009 [“oral remarks or comments made
by a trial court may not be used to attack a subsequently entered order or
judgment”].)
Finally, Johnnie cites In re Marriage of Hoffmeister (1984) 161
Cal.App.3d 1163, 1173, for the proposition that “the supporting spouse’s
ability to pay spousal support may be considered a change in circumstances
17
sufficient to justify an increased spousal support award if there is a showing
of need.” We agree; in Marriage of T.C., supra, 30 Cal.App.5th at page 424,
we ruled, “An ‘increase in the supporting spouse’s ability to pay’ may
constitute a change in circumstances” for purposes of modifying spousal
support. (Citing Marriage of Hoffmeister, at p. 1173.) Johnnie contends that,
in this case, in determining whether Thomas met his burden of establishing a
change of circumstances, the family court did not expressly disregard
Thomas’s post-marital income “per the bounds of Hoffmeister.” Thus,
Johnnie’s contention continues, the court failed to exercise its discretion, and
the failure to exercise discretion is an abuse of discretion. (Citing In re
Marriage of Gray (2007) 155 Cal.App.4th 504, 515 [“A trial court’s failure to
exercise discretion is itself an abuse of discretion”].) In this case, however, no
one argued that Thomas’s increase in post-marriage income was (or was not)
a change of circumstances for purposes of considering whether to modify the
existing support order contained in the Judgment; nor would Thomas have
advanced his increased income as a change of circumstance that would justify
a downward modification of his support obligation to Johnnie. Here,
consistent with Thomas’s RFO, the family court ruled that the changes of
circumstances sufficient to consider whether to effect a modification were:
“[Johnnie’s] decreased expenses combined with unsuccessful and insufficient
efforts to become self-supporting.”
4. The Gavron Warning
In In re Marriage of Gavron (1988) 203 Cal.App.3d 705 (Marriage of
Gavron), the court held that, without a “reasonable advance warning that
after an appropriate period of time the supported spouse was expected to
become self-sufficient or face onerous legal and financial consequences,”
failure of the supported spouse to become self-supporting cannot be a
18
“changed circumstance” sufficient to consider a modification of support. (Id.
at p. 712.) “Thus, what has become known as a ‘Gavron warning’ is a fair
warning to the supported spouse he or she is expected to become self-
supporting.” (In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 55.)
Years later, the Legislature codified the Gavron warning; and at the
time of the July 2011 Judgment here, former section 4330, subdivision (b)
gave the family court the discretion to include it in an order for spousal
support.17 The court exercised this discretion in the present case. The
Judgment—which was “approved as to form and content” by both Johnnie
and her attorney (capitalization omitted)—provides at paragraph 4.n.(1) that
the parties stipulated to the spousal support awarded and contains the
following order:
“NOTICE: It is the goal of this state that each party will
make reasonable good faith efforts to become self-
supporting as provided for in Family Code section 4320.
The failure to make reasonable good faith efforts may be one
of the factors considered by the court as a basis for
modifying or terminating spousal or partner support.”
(Italics added.)
In this appeal, Johnnie raises issues concerning the above-quoted Gavron
warning.
17 At the time of the parties’ July 2011 Judgment, former section 4330,
subdivision (b) provided: “When making an order for spousal support, the
court may advise the recipient of support that he or she should make
reasonable efforts to assist in providing for his or her support needs, taking
into account the particular circumstances considered by the court pursuant to
Section 4320, unless, in the case of a marriage of long duration as provided
for in Section 4336, the court decides this warning is inadvisable.”
(Stats. 1999, ch. 846, § 2.)
19
In her opening brief on appeal, Johnnie directs us to three paragraphs
of the FOAH which, she contends, “revolve around the effect of the alleged
‘Gavron’ warning in the Judgment.” They include:
• “[Johnnie’s] expenses decreased since moving to Georgia” (FOAH
¶ 1.k.);
• “[Johnnie’s] decreased expenses combined with unsuccessful and
insufficient efforts to become self-supporting constitute a change of
circumstances” (FOAH ¶ 1.l.); and
• “[The] Gavron warning on page 2 of [the] Judgment . . . cannot be
dismissed—it is an instruction and an expectation” (FOAH ¶ 1.q.).
Nonetheless, Johnnie presents no arguments or contentions that these (or
other) findings lack substantial evidence or contain an error of law.
Contrary to Thomas’s argument at the hearing on the FOAH,18 on
appeal Johnnie first contends, “It is factually impossible that Thomas relied
upon the Gavron warning when spousal support was set” in the July 2011
Judgment. For a number of independent reasons, this contention does not
help Johnnie.
Initially, Johnnie forfeited appellate review of the issue. The factual
premise for her conclusion regarding factual impossibility includes a
sequence of events during the July 2010 – July 2011 time period that
resulted in the Stipulation and the Judgment. However, Johnnie provides no
evidence or record references to support the events that comprise this premise.
Where, as here, “ ‘a party fails to support an argument with the necessary
18 Johnnie does not cite the specific language on which she relies. We
note that, at the hearing, Thomas’s attorney argued: “[Thomas] came into
that marital settlement agreement with the condition of a Gavron warning,
with the condition that [Johnnie] would do everything in her power to become
self-supporting. [Thomas ha]s held up his end of the bargain. He wants her
to hold up her end of the bargain.”
20
citations to the record, that portion of the brief may be stricken and the
argument deemed to have been waived.’ ” (Stover v. Bruntz (2017) 12
Cal.App.5th 19, 28 [appeal from child support order]; accord, Herriott v.
Herriott (2019) 33 Cal.App.5th 212, 222, fn. 15 [appeal from family court’s
domestic violence restraining order between former spouses: appellate courts
“may disregard statements not supported by proper” record references]; Cal.
Rules of Court, rule 8.204(a)(2)(C) [an appellant “must” limit the summary of
facts “to matters in the record”].)
In any event, Johnnie does not explain how, if at all, Thomas’s reliance
(or the factual impossibility for him to rely) on the Gavron warning affected
any ruling made by the court.
Further, even if we reached the merits, the result would be no different.
In part, that is because the argument of counsel (here, Thomas’s trial
attorney (see fn. 18, ante) is not evidence. (In re Zeth S. (2003) 31 Cal.4th
396, 413, fn. 11 [“the unsworn statements of counsel are not evidence”].) In
short, there is no indication that the trial court relied on counsel’s argument
in reaching its ruling.
Johnnie next complains that “there is no evidence Johnnie received the
[Gavron] warning.” Although not expressly asserted by Johnnie, we assume
that her corresponding legal argument is that, before spousal support may be
reduced (or terminated) based on an unsuccessful or insufficient effort to
become self-supporting, the supported party must be given fair notice of a
Gavron warning. (See Marriage of Gavron, supra, 203 Cal.App.3d at p. 712
[“Inherent in the concept that the supported spouse’s failure to at least make
good-faith efforts to become self-sufficient can constitute a change in
circumstances which could warrant a modification in spousal support is the
premise that the supported spouse be made aware of the obligation to become
21
self-supporting”]; In re Marriage of Heistermann (1991) 234 Cal.App.3d 1195,
1204 [“absent provisions in the original support order designed to direct the
spouse toward becoming self-supporting, an unemployed spouse should not be
penalized years later for a failure to become employed”].)
We are not persuaded that a lack of notice applies in this case. “ ‘The
rule is well established that a reviewing court must presume that the record
contains evidence to support every finding of fact[.]’ ” (In re Marriage of Fink
(1979) 25 Cal.3d 877, 887 (Marriage of Fink) [division of property].) Based on
(1) this presumption, (2) Johnnie’s failure to deny that she received a Gavron
warning,19 and the uncontradicted evidence both that (3) the Judgment
contains a Gavron warning and (4) Johnnie approved the Judgment as to
form and content,20 we have no difficulty concluding that Johnnie did not
19 At oral argument, Johnnie suggested that Thomas had the burden of
showing she received the Gavron warning for purposes of notice; i.e., she did
not have the burden to establish a lack of knowledge of the Gavron warning.
We express no opinion on this issue, since the record contains substantial
evidence to support the family court’s implied finding that Johnnie “approved
as to form and content” the Gavron warning contained on the preprinted
portion of paragraph 4.n. of the Judgment. (See fn. 20, post.)
20 At oral argument, Johnnie argued that the record contains no evidence
that she ever received a Gavron warning, since—according to her attorney—
at the July 21, 2010 hearing at which the parties stipulated to various terms
on the record, the parties did not discuss, and the family court did not direct,
a Gavron order. The Gavron order, according to Johnnie, was included in the
Judgment only because it is preprinted on the court form used; and there is
no indication that Johnnie ever saw the Judgment (with the Gavron order),
as opposed to merely the Stipulation. We reject this argument for at least
two independent reasons.
First, we conclude that, by her “approv[al]” of the Stipulation, she also
“approved as to form and content” paragraph 4.n. of the Judgment. That is
because, as part of the presumption of correctness that attaches to the FOAH,
22
meet her burden of establishing error related to her awareness of the
obligation in the Judgment that she become self-supporting.
In closing, Johnnie suggests that “[i]t is problematic that a Judicial
Counsel [sic] form could override a discretionary warning and in effect make
it mandatory.” According to Johnnie, section 4330, subdivision (b) provides
that the court has the discretion to give a Gavron warning (see fn. 17, ante),
whereas the Judicial Council form FL-180 used for the Judgment in this case
contains the above-quoted Gavron warning as a preprinted statement at
paragraph 4.n. of the form.21 By failing to present any legal argument or
authority, however, Johnnie forfeited appellate review of what she contends
on appellate review, “ ‘ “any conflict in the evidence or reasonable inferences
to be drawn from the facts[—here, whether Johnnie’s approval included
paragraph 4.n. of the Judgment—]will be resolved in support of the
[FOAH].” ’ ” (In re Marriage of Ciprari (2019) 32 Cal.App.5th 83, 94.)
Second, on the present record we must presume that, at the July 2010
hearing, Johnnie was given a Gavron warning. Because Johnnie (as the
appellant) “has the burden of showing reversible error by an adequate record”
(Ballard v. Uribe (1986) 41 Cal.3d 564, 574), “ ‘ “if the record is inadequate for
meaningful review, [Johnnie] defaults and the decision of the trial court
should be affirmed” ’ ” (Jameson v. Desta (2018) 5 Cal.5th 594, 609). Without
a reporter’s transcript of the July 2010 proceedings, “the [J]udgment must be
conclusively presumed correct as to all evidentiary matters,” which requires
us to “presume[ ] that the unreported . . . [proceedings] would demonstrate
the absence of error.” (Estate of Fain (1999) 75 Cal.App.4th 973, 992, italics
omitted & added.) In short, Johnnie’s “ ‘[f]ailure to provide an adequate
record on [the] issue requires that the issue be resolved against [her]’ ”
(Jameson, at p. 609).
21 In her opening brief, Johnnie asks us to take judicial notice of “the
current iteration of form FL-180, revised as of July 1, 2012,” which replaced
the form FL-180 (rev. Jan. 1, 2007) used for the July 2011 Judgment in this
case. We deny the request. Johnnie failed (1) to file a separate motion, as
required by California Rules of Court, rule 8.252(a), and (2) to provide a copy
of the document she asks us to judicially notice.
23
is “problematic.” (Marriage of Falcone, supra, 164 Cal.App.4th at p. 830; Cal.
Rules of Court, rule 8.204(a)(1)(B).) Further, Johnnie waived the specific
objection she raises now, since almost 10 years ago she expressly approved
both the form and content of the Judgment—which includes the Gavron
warning.
5. The Amount of Spousal Support
Johnnie’s final argument on appeal is that the family court erred in
setting the amount of monthly spousal support—i.e., a reduction from $2,303
to $1,300 effective July 1, 2017, with a further reduction to $1,000 effective
July 1, 2018.
Johnnie first argues “that an automatic step down of support is an
abuse of discretion unless there is evidence in the record that the supported
spouse will have a decreased need for support at the time of each scheduled
step-down.” (Citing In re Marriage of Prietsch & Calhoun (1987) 190
Cal.App.3d 645, 656 (Marriage of Prietsch).) Johnnie overstates what the
Marriage of Prietsch court ruled.
In distinguishing Marriage of Prietsch, supra, 190 Cal.App.3d 645, a
different division of the same appellate district explained that not every case
in which the family court orders a step-down in support requires evidence
that the supported spouse will have decreased needs in the future. (Marriage
of Rising, supra, 76 Cal.App.4th at p. 477.) To the contrary, where, as here,
the supporting spouse seeks a downward modification of an existing award,
“we do not believe it is critical that there be evidence showing the supported
spouse’s needs will decrease on each step-down date.” (Id. at p. 478.) That is
because the requirement for “evidence of decreased need to support an
automatic step-down” is limited to the situations “where the court’s primary
order is initially setting or later increasing support payments.” (Id. at
24
pp. 477-478, italics added; compare ibid. with Marriage of Prietsch, at
pp. 655-656 [the change of circumstances justified increasing the spousal
support].) As stated in Marriage of Rising and applicable in the present
appeal, a downward modification of an existing spousal support award “is
proper if, at the time of making the order, the court had discretion to
decrease support to the ultimate step-down level . . . and the court states that
it is implementing the step-down to ease the impact of the decrease on the
supported spouse.” (Id. at p. 478, italics omitted.) To this end, at
paragraph 1.r. of the FOAH, the family court expressly ruled: “Evidence
supports a reduction of support to $1,000, and to reduce impact the Court
finds a step-down plan appropriate.” Johnnie does not suggest that either of
these rulings exceeds the bounds of reason or is so irrational or arbitrary that
no reasonable person could agree with either of them.
Instead, Johnnie directs her attention to the following paragraphs of
the FOAH, which she contends are “in question”:
• “[Johnnie] has the ability to be self-supporting within the next two
years, which should substantially replace her need for support” (FOAH,
¶ 1.s.); and
• “[Johnnie] should be earning close to $3,000 by now. That was the
expectation, [but] she is not” (FOAH, ¶ 1.v.).
The entirety of her argument as to these findings is: “The $3,000.00 appears
ex nihilo. The record is devoid [(1)] of evidence that Johnnie ever made
anything over the $1,578.00 assigned her or [(2)] of proof that any position is
available to her whereby she could make such a level of income . . . [¶] . . . [or
(3) of evidence of] positions that would make her self-supporting (a vocational
evaluation would have cured that problem).” Once again, however, because
Johnnie’s presentation lacks “cogent legal argument or citation to authority,”
Johnnie has forfeited appellate review of the issues she raises with regard to
25
paragraphs 1.s. and 1.v. of the FOAH. (Marriage of Falcone, supra, 164
Cal.App.4th at p. 830; see Cal. Rules of Court, rule 8.204(a)(1)(B).)
In any event, to the extent Johnnie attempts to raise a substantial
evidence argument as to the findings at paragraphs 1.s. and 1.v. of the
FOAH, she further forfeited it by not including “ ‘in h[er] brief a summary of
the material evidence upon that issue. Unless this is done, the error assigned
is deemed to be waived. . . . It is incumbent upon appellants to state fully,
with transcript references, the evidence which is claimed to be insufficient to
support the findings.’ ” (Marriage of Fink, supra, 25 Cal.3d at p. 887.)
Johnnie did not do this here.
Finally, to the extent she complains that Thomas did not establish the
existence of a specific job earning a specific income, Johnnie presents no legal
authority requiring such a showing, and our independent research has
disclosed none under facts similar to those here. We are again not persuaded
by Johnnie’s repeated suggestion of legal error in failing to order a vocational
evaluation. Neither Thomas nor the family court was required to find
employment for Johnnie. The burden was on Johnnie to demonstrate a
reasonable good faith effort to become self-supporting, and the family court
expressly found that her efforts in this regard were both “unsuccessful and
insufficient.”
26
III. DISPOSITION
The March 18, 2019 FOAH is affirmed. Thomas is entitled to his costs
on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
IRION, J.
WE CONCUR:
BENKE, Acting P. J.
O'ROURKE, J.
27