Marriage of Howell CA2/3

Filed 10/18/13 Marriage of Howell CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re the Marriage of PATTI HOWELL and B241152
DOUGLAS HOWELL.
_____________________________________ (Los Angeles County
Super. Ct. No. BD404294)
PATTI HOWELL,
Appellant,
v.
DOUGLAS HOWELL,
Respondent.
APPEAL from an order of the Superior Court of Los Angeles County,
Elizabeth R. Feffer, Judge. Affirmed.
Trope and Trope, Thomas Paine Dunlap and Brian P. Lepak for Appellant.
Wasser, Cooperman & Carter, Laura A. Wasser, Samantha Klein; and Edward J.
Horowitz for Respondent.
_________________________
Patti Howell (wife) appeals a postjudgment order pertaining to the spousal support
and child support obligations of Douglas Howell (husband).
We perceive no abuse of discretion and affirm the trial court’s order in its entirety.
FACTUAL AND PROCEDURAL BACKGROUND
Following a 14-year marriage, the parties separated in 2004. There are two
children of the marriage, Morgan (born 1993) and Madison (born January 1996).
Morgan turned 18 and graduated from high school in 2011, prior to the filing of the
subject order to show cause.
Wife filed for dissolution in 2004, and a judgment as to status only was entered on
July 2, 2008.
1. The 2009 stipulated judgment.
In 2009, the parties stipulated to a judgment on reserved issues.
With respect to spousal support, the stipulated judgment ordered husband to pay
wife the sum of $8,000 per month, to continue until June 15, 2014, “or the first to occur
of the following terminating events: either party’s death, [wife’s] remarriage, or further
order of the Court.” The duration of spousal support was nonmodifiable unless, prior to
June 15, 2014, wife were to file a motion showing good cause to modify the amount or
duration of support.
The stipulated judgment provided the amount of spousal support and child support
were computed based upon, inter alia, the following factors: husband’s base gross annual
income of $525,000 and wife’s imputed gross annual income of $65,000; custodial
timeshare to husband of 42 percent; and child support “add-ons totaling $5,600, of which
$3,600 is for travel expenses associated with [husband’s] exercising his custodial
rights[1]and $2,000 for private school tuition for the parties’ children, for which
[husband] shall be solely and wholly liable without right of reimbursement.”
1
Husband travels frequently from Chicago to Los Angeles to exercise visitation.
His physical custody includes three weekends per month.
2
The stipulated judgment included a recital of the parties’ conflicting positions as to
whether the spousal support order met the marital standard of living: “[Wife] contends
that the spousal support order does not meet the parties’ marital standard of living.
[Husband] contends that the spousal support order exceeds the marital standard of living.
No finding is made as to whether the order for spousal support provided in the Stipulated
Further Judgment does or does not meet the marital standard of living. In any future
proceeding for modification or termination of spousal support, each party shall be entitled
to present evidence of what he or she contends to have been the marital standard of
living.”
The stipulated judgment included a Gavron warning (In re Marriage of Gavron
(1988) 203 Cal. App. 3d 705), advising wife “it is the goal of the California Family Code
that she become self-supporting within a reasonable period of time.”
With respect to child support, the 2009 stipulated judgment provided for base
child support of $2,000 per month for each of the two minor children, as well as
additional child support consisting of 11 percent of any cash bonus awarded to husband
by his employer (5.50% attributable to each of the children).2
In addition, the stipulated judgment requires husband: to maintain health
insurance for the minor children; to pay one-half of all mutually agreed-upon uninsured
or nonreimbursed medical, dental and other specified care needs; and to pay $2,000 per
month for private school tuition for the two children, for which husband was solely
responsible.3
2
For example, in March 2010, husband was awarded a $525,000 cash bonus by his
employer. In March 2011, he was awarded a $600,000 cash bonus. The 2011 bonus
resulted in an additional $33,000 in child support for Madison, the equivalent of an
additional $2,750 per month.
3
The record reflects Madison’s private school tuition is $975 per month.
3
2. Wife’s request to modify child and spousal support.
In November 2011, wife filed an order to show cause to modify child support and
spousal support; she filed an amended order to show cause the following month. By this
time, Madison was the only minor child. The 2011 order to show cause is the subject of
this appeal.
Wife requested that spousal support of $8,000 per month be increased to “an
amount of spousal support which is sufficient for [wife] to maintain the marital standard
of living, which was approximately $29,876 per month . . . Said amount of spousal
support takes into consideration sums necessary to pay taxes on that spousal support, but
should be reduced by child support ordered.”
With respect to child support, wife requested a modification to “guideline, using
all of [husband’s] total income.”
Wife’s supporting declaration stated, inter alia: Husband’s base salary had
increased by at least $75,000 per year and total compensation had increased by $388,000
per year since the time judgment was entered. She was unable to earn the $65,000
income that was imputed to her. She had lost half of her child support since June 2011,
although her expenses had not been reduced by 50 percent since that time. Her interest-
only loan on her residence had converted to a principal and interest loan, increasing her
housing expense by $1,200 per month. She was unable to refinance her loan due to her
insufficient income and the fact her spousal support was scheduled to terminate in 2014.4
4
Wife asserts she requires increased support in order to meet her housing expenses.
However, the record reflects that following separation, wife purchased a $1.5 million
house which she then had extensively remodeled, and the house is encumbered by a
$900,000 mortgage. Husband properly argues that wife’s alleged financial woes are of
her own making.
4
3. Husband’s response to wife’s modification request.
Husband’s papers showed his salary was $50,000 per month or $600,000 per year.
In addition, he received discretionary bonus income which amounted to $600,000 in
2011.
With respect to child support, husband’s position was that he should pay
guideline support on his base salary, which would result in a monthly child support
payment of $779 for Madison under the DissoMaster. In addition, husband agreed he
should continue to pay 5.5 percent of any bonus income as additional child support
(In re Marriage of Ostler & Smith (1990) 223 Cal. App. 3d 33), which would amount to an
additional $33,000 for 2011.
As for spousal support, husband disputed wife’s contention that her marital
standard of living was $29,876 per month. Husband asserted that during the marriage,
his monthly gross income did not exceed $25,750 until the final 10 months of the
marriage. Husband argued “it defies reason” that wife would have stipulated to monthly
spousal support of $8,000 if her actual marital lifestyle was $22,000 more. According to
husband, for “most of the marriage, they lived in the Midwest, did not own a second
home, took reasonably priced family vacations, and did not purchase expensive cars or
jewelry.”
As for wife’s contention that she should no longer be imputed income of $65,000
per year, husband relied on the 2008 vocational examination which concluded wife was
readily employable and within a few years should have been able to earn a salary
averaging $67,750 per year. Husband asserted that when wife previously appeared in
court in 2008, she was involved in the same fledgling business operation, Health-E-Tips,
which continued to lose money year after year. Instead of pursuing that venture, wife
should have heeded the trial court’s Gavron warning in 2009 that she needed to pursue
gainful employment in order to become self sufficient.5
5
Husband’s papers also showed he is paying $5,000 per month to support
Madison’s older sister, who is attending USC.
5
4. Trial court’s ruling.
On January 23, 2012, the matter came on for hearing. Thereafter, the trial court
ruled as follows:
Wife’s request for an increase in child support for Madison was denied.
Husband’s request for a downward modification of child support was granted, retroactive
to November 18, 2011. Commencing November 18, 2011, child support for Madison
was reduced to $781 per month.
As and for additional child support of Madison, husband was directed to continue
paying wife 5.5 percent of his cash bonus, pursuant to Ostler/Smith.
“Support for Madison shall continue until she reaches the age of majority, dies,
marries, becomes fully self supporting or emancipated, or until further order of the Court,
whichever first occurs. Pursuant to California Family Code §3901, child support shall
continue, as set forth herein, if Madison has attained the age of 18 and is a full time-high
school student who is not self supporting, until such time as Madison completes the 12th
grade, or attains the age of 19, whichever first occurs.”
With respect to calculation of guideline child support, the trial court found as
follows:
Husband’s monthly income available for support is $50,000. The trial court
“decline[d] to add back perquisites allegedly received by [husband].”
The trial court determined it was appropriate to continue to impute income to wife
in the amount of $65,000 per year, or $5,417 per month. “The Court finds that no
legitimate reason has been given by [wife] as to why she is not gainfully employed at this
time. [¶] c. The Court further finds that [wife] has failed to present any competent,
admissible evidence indicating that the vocational analysis conducted by Paulette
Hunnewell in 2008 should be disregarded by the Court. The Court finds that it is not
necessary to undergo an entirely new analysis of [wife’s] ability to obtain a job, the job
market, and the like. The Court finds that it is [wife’s] obligation to show that the
previously undertaken analysis of the vocational skills and opportunities upon which the
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current imputation of income is based no longer applies, and that [wife] has failed
to do so.”
The trial court denied wife’s request that it disregard husband’s travel expenses for
purposes of calculating child support. The trial court credited husband with child support
add-ons of $4,867 per month. This figure includes private school tuition of $975, travel
expenses of $3,811 and uninsured health care expenses of $81. “The Court finds that the
travel expenses incurred by Respondent allow him to maintain a 42% timeshare with
Madison.” The trial court denied wife’s request that the Ostler/Smith percentage be
calculated at 5.66 percent of husband’s bonus, rather than 5.50 percent.
The trial court found “there is more income available to Madison for support
under an Ostler/Smith calculation, as opposed to if [husband’s] bonus income were
included in a guideline child support calculation.”
The trial court directed the parties to “evenly split any cost (such as school fees,
uniforms and extracurricular activities) associated with Madison’s education over and
above the cost of her private school tuition, which at present is $975 per month.
Respondent shall continue to pay Madison’s private school tuition.”
The trial court denied wife’s request to increase spousal support and ordered
husband to continue to pay spousal support in the amount of $8,000 per month. The trial
court ruled:
“a. The Court finds that there is no material change in circumstances justifying a
modification of spousal support, and therefore the Court need not go through a complete
analysis of California Family Code § 4320.
“b. The Court finds that [wife’s] claim that the parties’ marital standard of living
was approximately $29,000 per month is not credible. The Court finds that this marital
standard of living would have been impossible, as [husband’s] gross income in 2002, the
last year of the parties’ marriage, was only $28,250 per month.
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“c. The Court finds that there is no evidence before it that [husband] is
deliberately concealing or reducing his income to evade his support obligations.
“d. The Court finds that there is no demonstrated history of invading capital
asset[s] and using the proceeds to maintain the parties’ standard of living.
“e. The Court declines to impute any rate of return on [husband’s] stock options.
“f. The Court finds that a future liquidation of [husband’s] stock could potentially
be considered income. The Court finds that some stock owned by [husband] may have
been purchased by [husband] with his salary, some may be retirement funds he was
awarded at the time of the parties’ dissolution, and some stock options have been
awarded to him as additional compensation by his employer. In the event of a
liquidation, the parties are to meet and confer, and [husband] shall provide [wife] with an
accounting.”
The trial court granted wife’s request for attorney fees in the sum of $20,000,
finding a clear disparity in income between the parties.
Wife filed a timely notice of appeal from the March 14, 2012 postjudgment order.
CONTENTIONS
Wife contends: the trial court erred in reducing guideline child support with a
“negative add-on”; there is no substantial evidence to support imputing income to wife of
$65,000 per year for the purposes of permanent spousal and child support; the trial court
erred in omitting husband’s undisputed perquisites, interest and dividend income from the
computation of child support; and the trial court’s stated reasons for refusing to modify
spousal support are not supported by substantial evidence.
DISCUSSION
1. Standard of appellate review.
The parties agree the trial court’s determination with respect to both spousal
support and child support is reviewed for an abuse of discretion. (In re Marriage of
Rosen (2002) 105 Cal. App. 4th 808, 825.)
8
2. Trial court properly continued to impute $65,000 income to wife.
Wife contends the trial court erred in imputing income to her of $65,000 per year
for the purposes of both permanent spousal support and child support. The contention
fails.
By way of background, the 2008 vocational evaluation by Paulette Hunnewell
showed, inter alia: Wife, then age 45, had a bachelor of science degree in business and
accounting. She had been employed by Hallmark for five years as an internal auditor and
then was promoted to an inventory controller position. Before that, she worked two years
as an auditor for Price Waterhouse. Wife was not precluded from engaging in full-time
employment due to child care responsibilities. Further, wife “possesses the necessary
capabilities to return to full-time employment . . . if she were motivated to do so.”
In 2002, wife began, and continues to operate a home-based business, Health-E-
Tips, Inc., an online wellness newsletter. Other than a two dollar profit she reported in
2006, the business lost money every year, and the losses ranged from $13,000 to $40,000
per year.
Hunnewell opined, inter alia: “[Wife] possesses the necessary education, work
history and transferable skills to immediately be employed as a sales representative or in
a related capacity. [Wife], initially, would earn at least $60,000 or more a year. After
securing two to three years of experience in this field [wife’s] earning capacity would
increase to at least $70,000 to $75,000 or more a year.”
Consistent with the Hunnewell evaluation, the 2009 stipulated judgment contains a
finding of “[i]mputed gross annual income to [wife] of $65,000.”
At the January 2012 hearing on wife’s modification request, the trial court
observed there had been discussion “at the prior hearings in 2008 and 2009 of how long
[wife] would continue to engage in this internet-based venture if it continued to lose
money . . . . And [wife] contended that she would spend only about another year at the
endeavor. [¶] Currently it appears that [wife] would be making more money if she just
stayed in bed every day and did not use any of her efforts and talents, which are
considerable, for Healthy Tips. This is completely contrary to the policy of the State of
9
California for the supported party to be self-supporting within a reasonable period of
time. [¶] It also shows that the support has been a disincentive for [wife] to be self-
supporting. . . . There seems to be no real reason given by [wife] why she cannot be
gainfully employed at this time.” (Italics added.)
Given this record, there is no merit to wife’s contention the evidence is insufficient
to support the trial court’s finding that her imputed income is $65,000 per year.
We also reject wife’s argument the trial court erred in relying on the 2008 report.
Although wife contends the evaluator’s report was hearsay and inadmissible absent
a stipulation, there is no indication that wife raised a hearsay objection below.
(Evid. Code, § 353.) Therefore, the evidentiary objection is waived.
Wife also contends the 2008 Hunnewell evaluation was four years old and
outdated by the time of the 2012 hearing. The trial court properly rejected this argument.
To reiterate the trial court’s ruling: “The Court further finds that [wife] has failed to
present any competent, admissible evidence indicating that the vocational analysis
conducted by Paulette Hunnewell in 2008 should be disregarded by the Court. The
Court finds that it is not necessary to undergo an entirely new analysis of [wife’s] ability
to obtain a job, the job market, and the like. The Court finds that it is [wife’s] obligation
to show that the previously undertaken analysis of the vocational skills and opportunities
upon which the current imputation of income is based no longer applies, and that [wife]
has failed to do so.” (Italics added.) The trial court’s ruling was correct. It was wife, as
the moving party on the order to show cause, who had the burden to show a material
change of circumstances. (In re Marriage of Smith (1990) 225 Cal. App. 3d 469, 482.)
For all these reasons, the trial court properly continued to impute $65,000 in
annual income to wife.6
6
The 2009 stipulated judgment provided for imputed income to wife of $65,000.
In its 2012 ruling on wife’s OSC to modify support, the trial court found wife failed to
meet her burden to show a material change of circumstances. Thus, the issue here was
whether a change of circumstances warranted modification of support, not whether the
10
3. Trial court properly denied wife’s request to increase spousal support; wife
failed to meet her threshold burden to show the previously ordered amount of $8,000
monthly was inadequate at the time the award was made.
a. Trial court’s ruling.
In refusing to increase spousal support from the baseline level of $8,000 per
month, the trial court found “there is no material change in circumstances justifying a
modification of spousal support, and therefore the Court need not go through a complete
analysis of California Family Code § 4320. [¶] b. The Court finds that [wife’s] claim
that the parties’ marital standard of living was approximately $29,000 per month is not
credible. The Court finds that this marital standard of living would have been impossible,
as [husband’s] gross income in 2002, the last year of the parties’ marriage, was only
$28,250 per month.”
b. Increase in spousal support based on increased earnings of supporting
spouse requires a showing the previous support order was inadequate.
Our “analysis begins with the general rule that for a court to consider a motion for
modification of spousal support there must first be a showing of a material change of
circumstances since the last prior support order, taking into consideration both the needs
of the supported spouse and the ability of the supporting spouse to meet those needs.
[Citation.] A material change of circumstances may consist solely of an increase in the
supporting spouse’s ability to pay, but if that is the only change, then to obtain an
increase in support there must also be a showing that the amount of support previously
ordered had not been adequate to meet the supported spouse’s reasonable needs at that
time. [Citations.] . . . [T]his rule logically permits incremental increases through multiple
modifications if there are gradual increases in the supporting spouse’s ability to pay.”
(In re Marriage of Smith, supra, 225 Cal.App.3d at pp. 482-483, italics added.)
2009 finding of imputed income was in the minors’ best interests. (Fam. Code, § 4058,
subd. (b); compare, In re Marriage of Ficke (2013) 217 Cal. App. 4th 10, 22.)
11
c. We defer to trial court’s credibility determination that the earlier
support order was adequate.
Wife contends the previous spousal support, i.e., the award of $8,000 per month as
set forth in the 2009 stipulated judgment, did not meet the parties’ marital standard of
living. Wife asserts that given husband’s 14 percent increase in compensation, the trial
court erred in refusing to increase the level of spousal support. Wife emphasizes she has
lost one-half of her child support and her housing expenses have risen.
Wife’s arguments are meritless. There was no material change of circumstances
warranting an increase in spousal support. The $1,200 monthly increase in wife’s
housing expenses was due to her buying more house than she could afford. The loss of
child support for the older daughter was foreseeable and expected, as Morgan attained the
age of majority.
The only thing that has changed is the increase in husband’s earnings since the
time of the 2009 stipulated judgment. However, as the trial court found, wife’s failure to
establish the $8,000 per month baseline was inadequate to meet her reasonable needs in
2009 precludes her from relying on husband’s increased earnings to obtain an increase in
spousal support. The trial court found wife not credible in this regard, and that
determination is entitled to deference by this court.
Moreover, as husband has argued “it defies reason” that in 2009 wife would have
stipulated to monthly spousal support of $8,000 if her actual marital lifestyle was $22,000
more.
On this record, the trial court properly determined the stipulated judgment’s
provision of $8,000 per month in spousal support was adequate to meet wife’s reasonable
needs as of 2009. Having determined the previous support order was adequate, the trial
court properly refused to increase spousal support based on nothing more than husband’s
increased ability to pay.
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4. Child support issues.
We begin with an overview of the child support situation.
As discussed, the trial court properly imputed an annual income of $65,000 to wife
for purposes of calculating child support. However, wife’s income, apart from support
payments, is essentially nil. Therefore, wife is not contributing toward Madison’s
support, other than what she receives from husband.
Madison spends 42 percent, or nearly one-half, of her time with husband. At this
juncture, husband pays wife $781 per month ($9,372 per year) in base child support for
Madison, plus additional child support of 5.5 percent of his bonus. For 2011, the most
recent year available, husband’s bonus was $600,000, giving rise to additional child
support payment of $33,000 for Madison for 2011. In addition, husband pays Madison’s
entire private school tuition ($975 per month), her health insurance, and one-half of her
extracurricular activities and unreimbursed medical expenses. Wife has not shown
Madison’s reasonable needs are not being met.
a. No merit to wife’s contention the trial court erred in reducing base child
support by husband’s travel expenses.
The record reflects the trial court reduced the guideline child support figure of
$3,215 per month by $2,434 for husband’s travel expenses, resulting in a net figure of
$781 per month (before adding 5.5 percent of husband’s bonus). Wife contends it was
error to decrease child support by the amount of husband’s travel expenses. She relies on
In re Marriage of Gigliotti (1995) 33 Cal. App. 4th 518, which held the trial court lacked
authority to reduce the guideline amount of child support by the amount of father’s
expenses to travel to another state to visit with the parties’ son. (Id. at p. 529.)
However, Wilson v. Shea (2001) 87 Cal. App. 4th 887, rejected Gigliotti’s
“hard and fast rule” (id. at p. 893) and stated “we cannot agree with any suggestion
that . . .visitation cannot be a sufficient reason to vary the guideline amount in move-
away cases.” (Id. at p. 895.)
In the instant case, in 2009, the parties entered into a stipulated judgment. As of
that date, both Gigliotti and Wilson were on the books. Notwithstanding the concerns
13
raised by the Gigliotti decision, the parties agreed to factor husband’s travel expenses into
the calculation of child support. The stipulated judgment, with respect to child support,
expressly provides for child support add-ons, “of which $3,600 is for travel expenses
associated with [husband’s] exercising his custodial rights.” (Italics added.)7
On this record, wife’s contention the trial court erred in reducing guideline child
support by the cost of husband’s visitation is barred by the doctrine of invited error.
(Perlin v. Fountain View Management, Inc. (2008) 163 Cal. App. 4th 657, 667 [invited
error doctrine precludes party from taking advantage of any error committed by court at
his request].) Having agreed in the stipulated judgment to factor husband’s travel
expenses into the calculation of child support, and that said provision was in the minors’
best interests, wife cannot complain the trial court adhered to that formula in modifying
support.
b. No merit to wife’s contentions with respect to husband’s perquisites and
interest and dividend income.
Wife contends the trial court erred in omitting husband’s monthly automobile
allowance of $722 and monthly dividend and interest income of $840 from the
computation of child support.
As husband argues, presumably the trial court disregarded the $722 because it
represented reimbursement for his business use of his personal automobile.
7
Family Code section 4065 provides in relevant part: “(a) Unless prohibited by
applicable federal law, the parties may stipulate to a child support amount subject to
approval of the court. However, the court shall not approve a stipulated agreement for
child support below the guideline formula amount unless the parties declare all of the
following: [¶] (1) They are fully informed of their rights concerning child support. [¶]
(2) The order is being agreed to without coercion or duress. [¶] (3) The agreement is in
the best interests of the children involved. [¶] (4) The needs of the children will be
adequately met by the stipulated amount.” The stipulated judgment contained all of these
recitals. Thus, the 2009 stipulated judgment duly acknowledged Family Code section
4065 and included a finding that the provisions in the stipulated judgment “are in the best
interests of the minor children.”
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As for husband’s $840 monthly interest and dividend income listed on his income
and expense declaration, wife asserts there was no justification for the trial court’s
“ignoring the dividend and interest income which [husband] conceded receiving.”
However, it does not appear that wife requested the trial court to include this additional
$840 per month in the computation of child support. This monthly income of $840 was
not even mentioned in wife’s reply papers below. Therefore, wife cannot be heard to
complain that husband’s $50,000 monthly income should have been enhanced by another
$840 for purposes of determining child support.
DISPOSITION
The March 14, 2012 order is affirmed. The parties shall bear their respective costs
on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P. J.
We concur:
KITCHING, J.
ALDRICH, J.
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