Marriage of Cho and Wong CA4/1 ( 2024 )

Filed 10/29/24 Marriage of Cho and Wong CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of SOYON
ELIZABETH CHO and CLARENCE
CLIFFORD WONG.
D082124
SOYON ELIZABETH CHO,
Appellant, (Super. Ct. No. DN182247)
v.
CLARENCE CLIFFORD WONG,
Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Daniel Segura, Judge. Affirmed.
Cage & Miles and John T. Sylvester for Appellant Soyon Elizabeth Cho.
Stephen Temko for Appellant Clarence Clifford Wong.
Soyon Elizabeth Cho (Wife) appeals from an order granting a request
by her ex-husband Clarence Clifford Wong (Husband) to modify spousal
support. The trial court decreased Husband’s monthly spousal support
payment to $1,250, from a previously modified amount of $2,315, which was
premised on Wife’s pandemic-related drop in income. Wife contends (1) the
trial court improperly ordered a downward modification of spousal support in
the absence of a finding of changed circumstances; and (2) the order reducing
spousal support to $1,250 should be reversed because the trial court
improperly applied the factors set forth in Family Code section 4320.1
We conclude that Wife’s contentions lack merit, and we accordingly
affirm the order modifying spousal support. Husband has filed a protective
cross appeal, which we deny as moot.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Wife and Husband were married on September 15, 2001, and separated
12 years, eight months later, on June 1, 2014. Their two children were born
in 2004 and 2007. A judgment of dissolution was entered on August 8, 2015.
At that time, according to the parties’ stipulation, Husband’s income was
$17,831, per month, including base income, stock options and bonus, and
Wife’s income was $1,400 per month. Starting January 1, 2016, Husband
was ordered to pay $2,984 per month in spousal support. Wife was awarded
the family home, including approximately $600,000 in equity, which she
subsequently sold, using the proceeds to buy a different home.2
In November 2019, Husband sought an order modifying spousal
support downward based on changed circumstances, including a change in
1 Unless otherwise indicated, all further statutory references are to the
Family Code.
2 Wife testified that she bought her current home for between $800,000
to $850,000. At a March 2023 hearing, it appeared to be undisputed that
Wife’s current home had significantly appreciated in value, with a value well
over $1 million, and that Wife owed $283,816.13 on her mortgage. Wife’s
monthly mortgage payments were $1,532, and her monthly property tax
expenses were $917.
2
child custody arrangements that would allow Wife to work full time. The
trial court modified spousal support downward to $1,525 per month, effective
November 15, 2019. The order was based on a finding that Husband’s net
monthly income was $11,087, and Wife’s net monthly income was $2,666.
Included in the calculation of Wife’s net monthly income was a finding that
Wife’s monthly income from her employment was $3,500.
In July 2020, Wife sought an order increasing spousal support due to
her reduced income caused by the pandemic. In a ruling filed December
2020, the trial court found that Wife’s monthly net income had been reduced
to $1,404, and it increased spousal support to $2,550 per month. Later, due
to Husband’s motion for reconsideration pointing out an error in calculating
the parties’ income, the trial court issued an order on September 13, 2021,
revising the amount of spousal support to $2,315, effective retroactively to
August 1, 2020. The September 13, 2021 order found that Husband’s net
monthly income was $12,136, and Wife’s net monthly income was $1,485.
Wife’s income from self-employment was $1,560, and her other taxable
income was $73.
The instant appeal is a result of Husband’s request to modify spousal
support downward from $2,315. The trial court held hearings in September
2022, and February and March 2023.3 At a September 2022 hearing, it was
established that Husband’s monthly income from employment was $15,807,
and Wife’s monthly income was now $4,656, which included a salary of
$4,333 per month, and other taxable income of $323. Wife had been working
full time at her current employer since October 2021 and had overcome the
3 Husband’s request to modify spousal support was filed in April 2021
but was not ultimately ruled upon until March 2023.
3
temporary drop in income caused by the pandemic. An updated filing in
February 2023 showed Wife’s wages and other taxable income remained at
the same increased level. Husband’s updated filing in February 2023,
showed monthly income from employment of $15,725, as well as other
income.4
In his briefing, Husband took the position that spousal support should
be terminated or that a step-down order should be made to eventually
terminate support. At the conclusion of the February 15, 2023 hearing, the
trial court said it intended to institute a step-down of spousal support to zero
over the course of three years, starting in January 2024.5 However, at the
request of Wife’s counsel, the court allowed further briefing and argument on
the issue before making a final decision.
At the March 17, 2023 hearing, the parties presented further
argument, with Wife’s counsel advocating against the step-down order.
During the hearing, Husband’s counsel pointed out that the previous spousal
support order was based on Wife’s reduced income due to the pandemic, but
that “[o]nce she found full-time employment [in October 2021], she now earns
more than she did before she lost the full-time job which means the spousal
support should go back to what it was or less” (i.e., $1,525 per month). The
trial court responded by stating that Wife’s increased income after the
4 We note that Husband also had variable employment income, which
was the subject of ongoing proceedings in the trial court, including a
stipulation between the parties on March 17, 2023. Among other things, the
parties’ stipulation states that Wife will receive future additional child
support payments based on Husband’s variable income according to a specific
formula.
5 The trial court described the step-down as follows: “[S]tarting in
January of 2024, it’s going to reduce to [$]1,500. And then beginning 2025, to
[$]750 a month. And then the beginning of 2026, it will be set at zero.
4
pandemic “alone may justify a modification of the [spousal support] amount.”
When the trial court asked Wife’s counsel to comment on that subject, she
stated “I don’t dispute the fact that [Wife’s] income has increased since the
last order was put in place is a basis for the Court to consider modification.”
Later in the hearing, the trial court indicated that it was not inclined to
issue a step-down order as it had previously intended. The trial court
explained, “My main reason for that . . . is really that ultimately when we
have someone who’s in a job that hasn’t been in that job for a significant
period of time, and given what her age is and what the job is, I’m not
confident it’s the type of job that she could easily replace if she got laid off or
wasn’t able to work there anymore or whatever it was.” The trial court then
asked counsel to address what the new spousal support order should be if the
court modified support due to Wife’s increased income, rather than issuing a
step-down order.6 Wife’s counsel stated, “If the court’s inclination is to
modify the support based on her increase in income, we would just argue and
request that it be -- I don’t want to say proportionate because it shouldn’t be a
dollar for dollar reduction. But I think it needs to be reasonable in terms of
the reduction. So essentially look at what she was earning before versus now
and make the adjustment accordingly, if that makes sense.” When the trial
court asked whether counsel could specify a particular amount for a modified
6 Wife’s appellate reply brief describes the trial court’s question as a
“hypothetical question that had no ultimate bearing on the case.” The
description is inaccurate. The question was hypothetical only in the sense
that it assumed the trial court was going to modify spousal support due to
Wife’s post-pandemic increase in income rather than issue a step-down order.
Specifically, the trial court asked (in somewhat confusing syntax), “What do
you propose[,] if I were to change because of her increase in income[,] the
court should order?”
5
spousal support order, Wife’s counsel stated, “[Wife] is requesting $1,500.”
Husband’s counsel stated that spousal support should be reduced to $884.7
The trial court then proceeded to thoroughly discuss the factors set
forth in section 4320, ruling that spousal support would be modified
downward to $1,250 per month starting on April 1, 2023. The trial court
denied Husband’s request that the order be made retroactive to at least
October 2021, which is when Wife obtained her current full time employment.
The trial court explained that because the order was not being made
retroactive, “I do believe that that would be a significant amount of the
money to assist her in meeting her needs as it relates to what her expenses
are.”8 The parties did not request a statement of decision.
Following the hearing, the trial court issued a minute order
summarizing its ruling and attaching a worksheet showing its consideration
of the factors set forth in Family Code section 4320. The minute order states,
“The Court now makes the following findings and orders:
“● See Family Code § 4320 attached
“● The Court reduces spousal support to $1,250 per month
going forward and commencing April 1, 2023.
“● The Court will not order this reduction retroactive
“● The Court notes Wife has increased her assets
7 Husband’s counsel specified the amount of $882 because Wife’s income
was, in his calculation, 42 percent higher than it was prior to the pandemic,
when spousal support was set at $1,525 per month effective November 15,
2019. Counsel explained that $882 was “42 percent less” than the $1,525
Wife was receiving before the upward modification of support due to Wife’s
loss of income during the pandemic.
8 Because the reduction in spousal support was not made retroactive to
October 1, 2021, Wife was saved from having to reimburse the sum of $19,170
to Husband.
6
“● The Court is not going to order a Richmond [step-down]
order nor a termination of spousal support [In re Marriage of
Richmond (1980) 105 Cal.App.3d 352, 356]
“● A change in either party’s income is a factor the court
would consider this a change of circumstances”9
The worksheet attached to the minute order goes through most of the
factors set forth in section 4320 and either comments on them or finds them
to be inapplicable, although the trial court provided a more thorough
discussion of those factors at the hearing.
Wife appeals from the order reducing spousal support. Husband has
filed a protective cross appeal regarding the trial court’s ruling denying his
request for retroactivity, to be considered only in the event we reverse the
trial court’s order modifying spousal support and remand for further
proceedings.
II.
DISCUSSION
A. Change of Circumstances
We first consider Wife’s contention that the trial court erred in ordering
a downward modification of spousal support because, according to Wife, there
was no change of circumstances to justify the order.
1. Applicable Legal Standards
“A spousal support order is modifiable only upon a material change of
circumstances since the last order. ‘Change of circumstances’ means a
reduction or increase in the supporting spouse’s ability to pay and/or an
9 Based on the trial court’s oral ruling, the statement in the minute order
that “[a] change in either party’s income is a factor the court would consider
this a change of circumstances” [sic] appears to refer to the trial court’s
statement that it would consider future modifications of the spousal support
order if there was a subsequent change in either of the parties’ income.
7
increase or decrease in the supported spouse’s needs. It includes all factors
affecting need and the ability to pay. Where there is no substantial evidence
of a material change of circumstances, an order modifying a support order
will be overturned for abuse of discretion.” (In re Marriage of West (2007)
152 Cal.App.4th 240, 246 (West).) “ ‘Absent a change of circumstances, a
motion for modification is nothing more than an impermissible collateral
attack on a prior final order.’ ” (In re Marriage of Khera & Sameer (2012)
206 Cal.App.4th 1467, 1479.)
2. An Implied Finding of Changed Circumstances Is Supported by
Substantial Evidence
Wife argues that the trial court erred because neither in its oral ruling,
nor in its minute order, did it make an express finding of a change of
circumstance to justify its issuance of an order modifying spousal support.
She further contends that substantial evidence does not support such a
finding. As we will explain, Wife’s argument fails because, in the absence of
a statement of decision, we may imply a finding of changed circumstances if,
as here, that finding is supported by substantial evidence in the record.
The Family Code provides that “[a]t the request of either party, an order
modifying, terminating, or setting aside a support order shall include a
statement of decision.” (§ 3654, italics added.) “ ‘Under the doctrine of
“implied findings,” when parties waive a statement of decision expressly or by
not requesting one in a timely manner, appellate courts reviewing the
appealed judgment must presume the trial court made all factual findings
necessary to support the judgment for which there is substantial evidence.’ A
party who does not request a statement of decision may not argue the trial
court failed to make any finding required to support its decision.” (In re
Marriage of McHugh (2014) 231 Cal.App.4th 1238, 1248.) “In other words,
the necessary findings of ultimate facts will be implied and the only issue on
8
appeal is whether the implied findings are supported by substantial
evidence.” (Abdelqader v. Abraham (2022) 76 Cal.App.5th 186, 197
(Abdelqader).)
Here, even though Wife failed to request a statement of decision, she
argues that the trial court was nevertheless required to make an express
finding of changed circumstances as a prerequisite to issuing an order
modifying spousal support and that we may not imply such a finding. For
this contention, Wife relies on case law she describes as holding that “the
doctrine of implied findings does not relieve the court of the requirement to
make mandatory findings such as these.” However, none of Wife’s authority
supports her assertion that we are precluded from implying that a trial court
made a finding of changed circumstances to support an order modifying
spousal support. Wife’s authorities provide support only for the proposition
that a finding of changed circumstances is required, but they do not state
that the finding must be expressly made, even when no party requests a
statement of decision and an implied finding is supported by substantial
evidence.10 (In re Marriage of Davis (1983) 141 Cal.App.3d 71, 78 [stating
that “by case law, the court must . . . make a finding of changed
10 Wife quotes from In re Marriage of Maxfield (1983) 142 Cal.App.3d 755,
759 for the proposition that “a court exceeds its authority and commits a
‘mistake of law’ by ‘not expressly finding changed circumstances before
modifying spousal support.’ ” However, the language in Maxfield that Wife
quotes and relies upon merely describes a contention made by a party.
Specifically, the husband in that case claimed that “the court . . . exceeded its
‘authority,’ . . . by not expressly finding changed circumstances before
modifying spousal support,” as requested in the parties’ stipulation. (Ibid.)
Other than describing the husband’s contention, which it rejected on a
different ground, Maxfield did not purport to evaluate whether the trial court
is required to make an express finding of changed circumstances in all cases
before modifying spousal support. (Ibid.)
9
circumstances since the time of the previous order”]; In re Marriage of T.C. &
D.C. (2018) 30 Cal.App.5th 419, 424 [“To modify spousal support, a trial court
must first find ‘ “ ‘a material change of circumstances since the last
order.’ ” ’ ”].)
Wife also relies on case law applying certain statutory provisions that
courts have interpreted as requiring a trial court to make express findings.
(In re Marriage of Morton (2018) 27 Cal.App.5th 1025, 1050 [the court
concluded that the language of the attorney fee statute in section 2030,
subdivision (a)(2)), which states that “the court shall make findings on
whether an award of attorney’s fees and costs under this section is
appropriate, whether there is a disparity in access to funds to retain counsel,
and whether one party is able to pay for legal representation of both parties,”
gives rise to a requirement that the trial court “make express findings—that
is, findings stated in words, either in writing or orally on the record,” italics
added]; Abdelqader, supra, 76 Cal.App.5th at p. 198 [when § 3044, subd.
(f)(1), (2) stated that a court is required to “state its reasons in writing or on
the record” and “make specific findings on each of the factors” in deciding
that the statutory presumption against awarding custody to a person who
has perpetrated domestic violence has been rebutted, the doctrine of implied
findings did not apply, so that the trial court erred in not making express
findings].) However, no such statute is at issue here. Wife has pointed to
nothing in the Family Code that could be interpreted as requiring the trial
court to make an express finding of changed circumstances as a prerequisite
to modifying spousal support.11
11 In arguing that we may not apply a finding of changed circumstances,
Wife also observes that (1) the doctrine of implied findings applies only to
omissions or ambiguities in a court’s findings, not its legal errors (Orange
10
As the doctrine of implied findings is applicable here, we turn to the
issue of whether substantial evidence supports a finding of changed
circumstances since the last spousal support order to justify a modification of
spousal support.12 (West, supra, 152 Cal.App.4th at p. 246 [a change of
circumstance inquiry for a spousal support order focuses on the change since
the “last order”].) As we have explained, the immediately preceding spousal
support order was based on Wife’s decreased income during the pandemic.
Specifically, the previous spousal support award of $2,315, effective August 1,
2020, was based on a finding that Wife’s income from employment was
$1,560, and her other taxable income was $73. In contrast, at the time of the
March 17, 2023 order, Wife’s monthly income from employment had
increased to $4,333, with additional taxable income of $323. An increase in
monthly income of that magnitude (185 percent) is substantial evidence of
materially changed circumstances that justifies a modification of the previous
spousal support order. (See West, at p. 246 [“ ‘[c]hange of circumstances’ ”
includes “an increase or decrease in the supported spouse’s needs”].) Wife’s
County Water Dist. v. Alcoa Global Fasteners, Inc. (2017) 12 Cal.App.5th 252,
312); and (2) “ ‘[w]hen the record clearly demonstrates what the trial court
did, we will not presume it did something different.’ ” (Border Business Park,
Inc. v. City of San Diego (2006) 142 Cal.App.4th 1538, 1550.) Neither of those
rules prevent us from applying the doctrine of implied findings in this case.
The issue of whether changed circumstances exists concerns a factual issue,
not a legal error. Further, Wife has not identified anything in the record
suggesting that a finding of changed circumstances would be inconsistent
with any express finding by the trial court to the contrary.
12 Although we have concluded that no express finding of changed
circumstances is required, we note that the record arguably does contain such
a finding. During the March 17, 2023 hearing, while delivering its ruling, the
trial court referred to a circumstance that had changed regarding Wife: “her
substantial increase in what her income is.” Earlier in the hearing, the trial
court pointed out that Wife’s income “significantly changed to the [$]4,300.”
11
counsel acknowledged the changed circumstances when she stated, at the
March 17, 2023 hearing, “I don’t dispute the fact that her income has
increased since the last order was put in place is a basis for the Court to
consider modification.”
Because substantial evidence supports a finding of changed
circumstances between the previous spousal support order, effective August
1, 2020, and the date of the March 17, 2023 hearing, we imply a finding by
the trial court of changed circumstances to justify its order modifying
monthly spousal support to $1,250.
B. The Trial Court Did Not Err by Modifying Monthly Spousal Support to
$1,250
Wife next argues that the trial court erred in modifying spousal support
because it arbitrarily applied the factors, set forth in section 4320, that are
relevant to arriving at an order of spousal support.
1. Applicable Legal Standards
‘ “Permanent spousal support ‘is governed by the statutory scheme set
forth in sections 4300 through 4360. Section 4330 authorizes the trial court
to order a party to pay spousal support in an amount, and 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 set forth in section 4320.’ ” ’ (In re Marriage of Maher &
Strawn (2021) 63 Cal.App.5th 356, 363.)
After spousal support has been ordered, “[t]he trial 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 its discretion, the trial court considers the same criteria
set forth in section 4320 as it was obligated to consider in making the initial
support order.” (Ibid.) Section 4320 provides:
12
“In ordering spousal support under this part, the court shall
consider all of the following circumstances:
“(a) 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.
“(b) The extent to which the supported party contributed to the
attainment of an education, training, a career position, or a
license by the supporting party.
“(c) The ability of the supporting party to pay spousal support,
taking into account the supporting party’s earning capacity,
earned and unearned income, assets, and standard of living.
“(d) The needs of each party based on the standard of living
established during the marriage.
“(e) The obligations and assets, including the separate property,
of each party.
“(f) The duration of the marriage.
“(g) The ability of the supported party to engage in gainful
employment without unduly interfering with the interests of
dependent children in the custody of the party.
“(h) The age and health of the parties.
“(i) All documented evidence of any history of domestic
violence . . . between the parties or perpetrated by either party
against either party’s child . . . .
“(j) The immediate and specific tax consequences to each party.
“(k) The balance of the hardships to each party.
“(l) The goal that the supported party shall be self-supporting
within a reasonable period of time. . . . .
13
“(m) The criminal conviction of an abusive spouse shall be
considered in making a reduction or elimination of a spousal
support award . . . .
“(n) Any other factors the court determines are just and
equitable.” (§ 4320)
“Although by statute the trial court must consider section 4320 factors
in deciding whether to modify a spousal support order, the statute does not
purport to require the court to address each factor expressly.” (In re
Marriage of Diamond (2021) 72 Cal.App.5th 595, 602 (Diamond).) Further,
“[a]fter considering the marital standard of living along with the other
statutory factors, ‘the court may “fix spousal support at an amount greater
than, equal to or less than what the supported spouse may require to
maintain the marital standard of living, in order to achieve a just and
reasonable result under the facts and circumstances of the case.” ’ ” (In re
Marriage of Grimes & Mou (2020) 45 Cal.App.5th 406, 425 (Grimes & Mou).)
“ ‘While spouses must support each other during marriage [citation], the
court has been given greater discretion in marital dissolutions to deny
spousal support altogether or to limit such support in an amount and
duration that reflects the ability of both parties in contemporary unions to
provide for their own needs.’ [Citation.] ‘The law . . . entitles either spouse to
postdissolution support for only so long as necessary to become self-
supporting.’ ” (Id. at p. 425.)
“The court has discretion as to the weight it gives to each factor
[citation], and then “ ‘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 [its] discretion.” ’ ” (In re Marriage of Shimkus
(2016) 244 Cal.App.4th 1262, 1273 (Shimkus).) “ ‘In exercising its discretion
the trial court must follow established legal principles and base its findings
14
on substantial evidence. . . . If the trial court conforms to these requirements
its order will be upheld whether or not the appellate court agrees with it or
would make the same order if it were a trial court.’ ” (West, supra,152 Cal.App.4th at p. 246.) “ ‘ “Because trial courts have such broad
discretion, appellate courts must act with cautious judicial restraint in
reviewing these orders.” ’ ” (In re Marriage of McLain (2017) 7 Cal.App.5th
262, 269.)
2. Wife’s Challenges to the Modification Order Lack Merit
Wife presents three grounds for her contention that the trial court
erred in setting the amount of modified support at $1,250 per month. Those
three grounds are summarized in Wife’s appellate reply brief as follows:
“[Wife] has identified error on the part of the trial court in (1) reducing
support based on [Wife’s] increased income when the evidence showed she
still could not meet her reasonable needs, (2) reducing support based on the
speculation that [Wife’s] residence had increased in value since the divorce
when she was not required to invade the principal of her retirement or real
estate assets to meet her support needs, and (3) reducing support while
expressly finding such a reduction would ‘hurt’ [Wife] and further prevent her
from meeting her reasonable support needs in contravention of the purpose of
the spousal support statute.” As we will discuss, none of Wife’s arguments
have merit.
a. Inability to Meet Her Reasonable Needs
Wife’s first argument is premised on the concept that, in setting
spousal support, a trial court should take into account the parties’
“ ‘reasonable needs and their financial abilities.’ ” (In re Marriage of Cheriton
(2001) 92 Cal.App.4th 269, 304) Wife contends that the trial court erred
because it reduced spousal support to a level that would not allow her to meet
15
“her reasonable needs.” According to Wife, the trial court “exceeded the
bounds of reason” because it “acknowledged [Wife] could not meet her needs,
even with her increased income and the current support, yet reduced support
anyway.” (Italics added.) Wife relies on several items to support her
contention that the trial court concluded she could not meet her reasonable
needs, even with the current amount of support ($2,315), let alone with a
reduced amount ($1,250). As we will explain, Wife’s contentions are not
supported by the record.
First, Wife relies on the trial court’s statement in the worksheet
attached to the March 17, 2023 order that Wife’s “current earning capacity
does not meet the [marital standard of living].” At the hearing, in discussing
this factor, the trial court similarly stated, “the Court looks at it as currently
her earning capacity does not meet [the marital standard of living] under
[section] 4320.”
However, the trial court’s finding does not support Wife’s contention
that the trial court concluded she was unable to meet her “reasonable needs,”
with either the current spousal support payment of $2,315, or a reduced
payment of $1,250. The trial court’s statement does not carry that meaning
for two reasons. First, the trial court was plainly commenting on Wife’s
financial condition without any support, not with a support amount of either
$2,315, or $1,250. Second, the trial court was not addressing Wife’s ability to
meet her “reasonable needs,” as Wife contends. Instead, the trial court was
commenting on Wife’s ability to maintain the marital standard of living,
which it found to be middle class or upper middle class. The Family Code
“ ‘does not make “marital standard of living” the absolute measure of
reasonable need. “Marital standard of living” is merely a threshold or
reference point against which all of the statutory factors may be weighed.’ ”
16
(Grimes & Mou, supra, 45 Cal.App.5th at pp. 424–425.) Moreover, “courts
have held that the goal of achieving the marital standard of living may
decrease in relative importance over time.” (In re Marriage of Shaughnessy
(2006) 139 Cal.App.4th 1225, 1247.) The trial court’s March 17, 2023 order
was made almost nine years after the parties’ June 1, 2014 separation.
Therefore, in commenting that Wife’s earning capacity did not match the
standard of living, the trial court cannot reasonably be understood as stating
that Wife could not meet her reasonable needs based on her earning capacity,
as opposed to meeting the marital standard of living.
Second, Wife points to two other statements appearing in the
worksheet attached to the trial court’s March 17, 2023 minute order. In the
portion of the worksheet corresponding to the statutory factor regarding
“[t]he needs of each party based on the standard of living established during
the marriage,” the trial court wrote, “Untimately [sic], [Wife] would have to
deplete her savings and assets and would not be able to retire as [Husband]
would be able to.” Regarding the statutory factor, “The balance of the
hardships to each party,” the trial court wrote, “A reduction in spousal
support would hurt [Wife].” According to Wife, these two statements, taken
together, indicate the trial court’s acknowledgement that, with a reduction in
support, Wife would be “hurt” because “she would have to invade retirement
asset principal to make ends meet.”
However, that is not what those two statements communicate. First, at
the hearing, the trial court made clear that in referring to Wife’s need to
invade her retirement assets, it meant to indicate that if Wife ultimately had
to access her assets, her ability to retire might be impacted, in contrast to
Husband who will almost certainly have a secure retirement. The trial court
explained, “Ultimately, if she does have to rely on whatever savings or assets
17
she has, she’s going to deplete that and would not necessarily be able to
retire, whereas he will, almost regardless of any other obligations.” The trial
court was clearly not making a finding that, if it reduced support from the
current amount of $2,315, to $1,250, Wife would need to rely on her
retirement assets to support herself.
Moreover, with respect to the worksheet statement that “[a] reduction
in spousal support would hurt [Wife],” at the hearing, the trial court was
clear that it was simply commenting on the balance of hardships, as between
the parties, regarding a spousal support order. The trial court said, “and the
balance of hardships, frankly, the only hardship really would be to her in the
sense of reducing anything.” From this comment, we understand the trial
court to have meant that due to Husband’s secure financial situation, he
would not experience any hardship regardless of what support was ordered,
and that only Wife would possibly experience a hardship from a reduction in
support. The trial court was not making any specific finding that a reduction
in support from the amount of $2,315, to $1,250, would necessarily result in
harm to Wife and an inability to meet her reasonable needs.
Third, Wife faults the trial court because it “failed to make any findings
regarding the immediate and specific tax consequences to [Wife] of the
spousal support order, despite her payment of taxes on income reducing her
ability to meet her reasonable needs.” Wife’s argument lacks merit for
several reasons. For one thing, Section 4320 “does not purport to require the
court to address each factor expressly.” (Diamond, supra, 72 Cal.App.5th at
p. 602.) Nevertheless, the trial court did acknowledge that one of the section
4320 factors was “[t]he immediate and specific tax consequences to each
party” (§ 4320, subd. (j)). It found, however, that the factor was not
significant, writing in its worksheet, “not a factor,” and stating at the
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hearing, “Tax consequences, that’s not a factor for the Court at this point.”
We understand wife’s specific argument to be that the trial court should have
expressly acknowledged that Wife would be required to make normally
expected income tax payments on her monthly income of $4,656, which would
result in less available funds to meet her reasonable needs. However, Wife’s
income and expense declaration and the pay stubs attached thereto provided
information about Wife’s tax filing status and the amount of taxes deducted
from her paychecks. Wife has presented no basis to conclude that the trial
court (1) ignored that information in assessing Wife’s financial condition and
setting the amount of the spousal support order, or (2) failed to recognize that
Wife, like all workers, would be required to pay income tax on her gross
earnings.
Finally, Wife’s fundamental contention is that even with the modified
spousal support amount of $1,250 per month, she was unable to meet her
reasonable expenses. Wife states that “the evidence . . . squarely indicated
she could not be self-sufficient with reduced support.” The financial
information contained in the record does not support that assertion. Wife’s
counsel stated at the March 17, 2023 hearing that “[$]8,000 is basically the
minimum for [Wife] to be self-supporting.”13 As Husband points out, Wife is
13 Wife’s February 8, 2023 income and expense declaration identified her
monthly household expenses, for herself and her daughter, as $8,509,
including items such as $750 for eating out, $500 for clothes, $1,300 for
groceries and household supplies, and $500 for entertainment, gifts and
vacation. Wife’s August 24, 2022 income and expense declaration, in
contrast, identified her monthly household expenses as only $7,019, including
$250 for eating out, $200 for clothes, $500 for groceries and household
supplies, and $200 for entertainment, gifts and vacation. Wife’s timeshare
with her daughter did not change between the date of the two declarations,
as it was already at 95 percent by July 1, 2022. Although Wife’s counsel
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receiving child support of $2,009 per month, plus an additional amount based
on Husband’s variable employment income.14 Adding together the child
support payment of $2,009, Wife’s income of $4,656 and a spousal support
award of $1,250 results in a total of $7,915. Added to that amount would be
any additional child support due to Husband’s variable income. On top of all
that, the trial court also noted that Wife would have “a significant amount of
the money to assist her in meeting her needs as it relates to what her
expenses are” because it was not making the reduced spousal support order
retroactive to October 2021 as Husband requested.
In light of all of those considerations, the record does not support Wife’s
contention that the trial court erred by “reducing support based on [Wife’s]
increased income when the evidence showed she still could not meet her
reasonable needs.”15
stated at the hearing that Wife’s reasonable needs were $8,000 per month,
the trial court could reasonably conclude that, in the absence of any specific
explanation for the significant increase in spending on discretionary expenses
between August 2022 and February 2023, Wife could reasonably support
herself based on the amount set forth in the August 2022 declaration rather
than the February 2023 declaration.
14 As we have explained, the parties’ March 17, 2023 stipulation provides
for future child support payments based on Husband’s variable income
according to a specific formula.
15 We note, moreover, that the trial court’s order setting spousal support
at $1,250 put Wife in an even better position than the spousal support order
covering the time period directly before the pandemic. The spousal support
order effective November 15, 2019, prior to Wife’s pandemic-related loss of
income, was in the monthly amount of $1,525. The trial court based that
order on a finding that Wife’s monthly income from employment was $3,500.
In contrast, as of the March 17, 2023 hearing, Wife’s monthly income from
employment had increased from $3,500 to $4,333–representing an increase of
$833. Nevertheless, in making the March 17, 2023 order setting spousal
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b. The Trial Court Did Not State That It Was Requiring Wife
to Invade Her Assets
Wife next argues that, in making its support order, the trial court “was
not looking to income actually produced from the supported spouse’s assets
but was instead improperly requiring her to invade asset principal.”
According to Wife, “[b]y ordering support reduced based on the finding that
[Wife] would or could deplete assets to support herself, the court was not
looking to income actually produced from the supported spouse’s assets but
was instead improperly requiring her to invade asset principal. . . . This was
reversible error.”
Wife’s argument fails because it fundamentally mischaracterizes the
trial court’s ruling.16 The trial court never stated that it was setting spousal
support at an amount that would require Wife to invade asset principal. Wife
relies on the statement in the trial court’s worksheet, which we have
discussed above, containing the trial court’s comment on the statutory factor
regarding “[t]he needs of each party based on the standard of living
established during the marriage.” The trial court wrote, “Untimately [sic],
[Wife] would have to deplete her savings and assets and would not be able to
retire as [Husband] would be able to.” However, as the trial court’s
comments at the hearing establish, the trial court was making only the
support at $1,250, the trial court awarded spousal support in an amount only
$300 less than the $1,525 in spousal support Wife received when her income
was $3,500.
16 Because Wife’s argument fails due to her mischaracterization of the
trial court’s ruling, we need not, and do not, address the accuracy of the legal
premise for her argument, namely, that “California courts look only to actual
income produced from the supported spouses assets when reviewing a
particular spousal support order” and “do not require supported spouses to
invest and manage their estate so as to maximize income, or invade capital,
to meet their current support needs.”
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limited observation that if Wife did not receive spousal support, the ultimate
effect might be that she would have to deplete her retirement assets, whereas
Husband would almost certainly be able to retire. The trial court did not find
that an order setting spousal support at $1,250 per month would require Wife
to invade her retirement assets.
Wife also points to the statement in the minute order, “The Court notes
Wife has increased her assets.” Based on the discussion during the March 17,
2023 hearing, we infer that this statement refers to the undisputed fact that
the value of Wife’s residence had increased. In connection with that fact, the
trial court commented while delivering its ruling that it did “agree that
[Husband’s] argument is well taken that claiming poverty when you live in a
house with over a million dollars in equity is -- stretches credulity.” However,
the trial court did not state that it expected a spousal support order of $1,250
per month would require Wife to access her home equity to meet her
reasonable needs.
c. The Trial Court Did Not Abuse Its Discretion
Wife’s final contention is a broad catch-all argument that the trial court
abused its discretion by modifying spousal support because such an order
“directly def[ied] the purpose and goals of spousal support.” The argument is
premised, to a large extent, on the mischaracterizations of the record that we
have described above. Wife repeats the incorrect assertion that the trial
court “expressly” found that a monthly spousal support order of $1,250 would
“prevent her from meeting her reasonable support needs,” and she again
claims that the trial court required her to invade her assets. On top of those
mistaken contentions, Wife refers to other undisputed facts, such as Husband
having significantly more income and assets than Wife, and that Wife
“devoted her time during the marriage to raising the children and taking care
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of the family, which negatively affected her ability to become self-supporting
and plan for her retirement in the long run.” In addition, Wife once again
takes out of context the trial court’s statement that “[a] reduction in spousal
support would hurt [Wife],” even though, as we have explained, the trial
court was not commenting that a reduction to $1,250 would cause harm to
Wife.
As we have explained, the trial court has significant discretion in
making a spousal support award once it has considered the factors set forth
in section 4320. (Shimkus, supra, 244 Cal.App.4th at p. 1273.) The record
shows that the trial court fully and thoroughly considered the relevant
factors, after which it concluded that a modification of monthly spousal
support to $1,250 was more appropriate than the amount of $1,500 requested
by Wife, or the amount of $884 requested by Husband. Although Wife does
not agree with the manner in which the trial court weighed the section 4320
factors, she has not identified any reason for us to conclude that the trial
court abused its discretion.
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DISPOSITION
The March 17, 2023 order reducing monthly spousal support to the
amount of $1,250 is affirmed. Because we are affirming the trial court’s
order, Husband’s protective cross appeal is denied as moot. Husband is
awarded his costs on appeal.
IRION, Acting P. J.
WE CONCUR:
CASTILLO, J.
RUBIN, J.
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