Marriage of Fraser CA4/1

Filed 5/19/22 Marriage of Fraser 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of JOHN
CAMERON FRASER III and
KARA C. FRASER.
D079148
JOHN CAMERON FRASER III,
Appellant, (Super. Ct. No. DN181357)
v.
KARA C. FRASER,
Respondent.
APPEAL from an order of the Superior Court of San Diego County,
Pennie K. McLaughlin, Commissioner. Affirmed.
Fleischer & Ravreby, Myra Chack Fleischer and Tana Landau for
Appellant.
Yelman & Associates and Sara R. Neumann for Respondent.
John Cameron Fraser III appeals a post judgment order modifying
spousal support and reserving jurisdiction. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
John and Kara C. Fraser1 married on June 4, 1999 and separated on
December 15, 2014, for a marriage of 15 years and six months. They have
two minor children together. John filed for dissolution of marriage on
December 16, 2014. The marriage was deemed to be of a long duration.
Kara met John Kennedy, Jr. in October 2014 while she was still
married to John. They began a relationship in mid-2015. During the
dissolution matter, Kara was pregnant with Kennedy’s child, who was born
on May 31, 2016.
Through Judicate West, retired Judge Christine Goldsmith presided
over a trial on certain reserved issues over a 5-day period between
February 22, 2017 and March 3, 2017.2 Among other issues, Judge
Goldsmith addressed spousal support. As such, Judge Goldsmith explained
in the written judgment (Judgment) as follows:
“Effective April 1, 2017, spousal support is set at $7,500 per
month. This order will not meet the marital standard of
living. It will not meet [Kara’s] articulated monthly
expenses per her Income and Expense Declaration. The
standard of living is no longer available to either party.
This order is effective through March 31, 2021 at which
time it is reduced to $5,000 per month until death,
remarriage, cohabitation in an intimate relationship or
further order of the court.”
At the time Judge Goldsmith issued the Judgment, it is clear she was
aware that Kara had an infant child with Kennedy, but there is no indication
1 As is customary in family law cases, we will refer to the parties by their
first names. (Noergaard v. Noergaard (2015) 244 Cal.App.4th 76, 81, fn. 2.)
2 Other issues like custody, visitation, and disposition of the marital
residence were resolved earlier. Because those issues are not relevant to this
appeal, we eschew any further discussion of them.
2
that the court found that Kara and Kennedy were cohabitating at that time:
“[Kara] has an infant from another relationship. [Kennedy] lives in the
County and is available to assist.”
Kara’s motion for a new trial was denied. Neither John nor Kara
appealed the Judgment.
John was diagnosed with cancer in early December 2017. John
informed Kara of his health condition in January 2018 and attempted to get
her to agree to modify the amount of support. The parties did not reach an
agreement regarding a modification.
For reasons not explained in the record, following the trial that ended
on March 3, 2017, the Judgment was not entered for almost a year. It finally
was entered on February 13, 2018. On March 16, 2018, John filed a request
for order to modify child support and spousal support as well as for an award
of attorney fees. Among other issues, John requested that the court
terminate spousal support (or reduce it to zero) because Kara was “living in
[a] spousal relationship and [he] ha[d] been unable to work much because [he
is] fighting a cancer diagnosis and treatment.” Apparently, John ceased
making spousal support payments in November 2017. A long cause
evidentiary hearing was set for March 8, 2019.
On December 10, 2018, Kara filed a request for an order for spousal
support arrears, a security account, and attorney fees. This request also was
set to be heard on March 8, 2019. On March 8, 2019, the parties agreed to
continue the hearing for an Evidence Code section 730 expert to perform an
income available for support analysis of John’s business.
Relevant here, in his trial brief, John argued for a spousal support
modification because he was earning significantly less than when the amount
of support previously had been set, Kara failed to make reasonable efforts to
3
become self-sufficient, and Kara had been cohabitating with a nonmarital
partner. Moreover, John explained, based on Family Code3 section 4320,
why the court should modify the amount of spousal support. In addition,
John filed a memorandum of points and authorities regarding cohabitation
wherein he argued that Kara and Kennedy had been in a continuous
relationship since 2015 and, as of August 7, 2020, Kara and Kennedy had
been living together for four months. John also contended that Kennedy
contributed to household expenses and the care of Kara and Kennedy’s
daughter. Based on this cohabitation, John requested that spousal support
be terminated or set at zero.4
On August 20, 2019, at a scheduling conference, Kara indicated she
opened a case with the Department of Child Support Services (DCSS).
Eventually, a date for the evidentiary hearing was set for January 17, 2020.
However, the hearing did not begin until August 7, 2020, with additional
hearing days on February 5 and 24, 2021.
At the evidentiary hearing, John, Kara, Kennedy, and Clementina
Alfaro5 testified. The parties do not disagree about the evidence at the
hearing or challenge the court’s factual findings. As such, we will not detail
the witness’s testimony but instead discuss the court’s factual findings based
on the testimony.
3 Statutory references are to the Family Code unless otherwise specified.
4 The record does not include a trial brief filed by Kara.
5 Alfaro used to work for Kara in 2015 but had not worked for her since
then. She testified that she would visit Kara twice a week for a couple hours
and sometimes take her daughter to the park.
4
Before the parties gave their closing arguments, the court explained its
tentative findings on the cohabitation issue. To this end, the court reasoned:
“So my tentative findings would lead to—as I indicated
earlier, I believe by the clear language of the judgment,
‘cohabitation in an intimate relationship,’ that this Court is
bound by that. I don’t interpret it otherwise, so it would
exclude the other marriage debt. And so it’s a category just
like remarriage and [death], is my finding. That’s the plain
meaning of that sentence in the judgment. So beginning
April 1st, 2020, the Court would set spousal support at zero
and reserve on that issue by the plain language contained
in the judgment.
“However, from April 1st, 2018, through March 31st, 2020,
I do find, while [Kara] may have had a decreased need for
spousal support due to her cohabitation, I don’t find that it
was the cohabitation that occurred April 1st of 2020. And
that’s based on the following:
“I recognize that they were in a continuous romantic
relationship. Mr. Kennedy leased the car, he paid some of
the bills, their daughter lived in the home, and that he
spent anywhere from—anywhere up to 71 percent of the
time together at that point. And there was evidence that
he spent six nights a week, depending on how much weight
I wanted to give that. So there is evidence that there was
some level of decreased need due to the presence of the
romantically involved Mr. Kennedy with [Kara]. And for
that reason, I did consider what would make sense.
“I don’t believe zero would make sense. I believe [Kara]
still had a need for spousal support. I went through all the
factors, the disparity in income. I also found [Kara] did
5
not, as a tentative finding, didn’t abide by the Gavron[6]
warning to avail yourself of opportunities or look for them
before the pandemic. We talked about that, and that you
have marketable skills. You did some incredible work for
Advantech, and I looked at that vocation evaluation.
“So there are some other findings, as well. But my
tentative was to set spousal support to the reduced amount
of 3,500, even in light of [John’s] medical condition, your
setbacks during some of this period, to 3,500 per month
from April 1st, 2018, through March 31st of 2020.”
During her closing argument, among other things, John’s counsel
argued that the Judgment “ma[d]e it very clear that any level of cohabitation,
because of what was happening even before the judgment was entered, gave
rise to Judge Goldsmith entering into an order that said cohabitation of any
form, because it was already there, led to termination just like death, just
like marriage. Cohabitation ends it. And when we filed, it ended it, because
she was cohabitating, Your Honor, even though it wasn’t a hundred percent
6 In In re Marriage of Gavron (1988) 203 Cal.App.3d 705 (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 “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.)
6
until April 1st, 2020. And the case law that we have elucidated in our Points
and Authorities shows it.”7
During her closing argument, Kara’s attorney disagreed with the court
that, as of April 1, 2020, Kara and Kennedy were cohabitating. She
maintained that Kennedy began staying at Kara’s residence because of the
COVID pandemic. Kennedy was living with his elderly parents but did not
think it was safe to travel between homes. So, he started staying with Kara.
However, Kara’s attorney emphasized that he did not do so to support Kara
or “manifest a married-type relationship.” Counsel further argued that
Judge Goldsmith knew, at the time she entered the Judgment, that Kara and
Kennedy were in a relationship, had a child together, and Kennedy
sometimes spent the night at Kara’s house. As such, counsel argued, “I don’t
think [cohabitation] was intended by her to be a terminating factor under
that context, because that existed at the time of the judgment.”
The court responded that it did not believe “there [were] the same
significant factors in existence in front of Judge Goldsmith that we have
today.” To this end, the court noted Kennedy’s own testimony, indicating
that he had been cohabitating with Kara since 2020.
In its written order following the hearing, the court decreased the
amount of spousal support to $3,500 per month for the period of April 1, 2018
through March 31, 2020. The court reduced spousal support to zero on
April 1, 2020, but set a reserved order. The court explained that it found a
7 Although it appears that John made certain legal arguments below
regarding what constitutes cohabitation (including providing case law), he
did not do so in his opening brief. Because John did not brief this issue on
appeal, we do not consider the case law on which he relied below. (See
Garrick Development Co. v. Hayward Unified School Dist. (1992) 3
Cal.App.4th 320, 334.)
7
“substantial change of circumstances” supporting a modification in the
amount of spousal support. The court then discussed these changes as
follows:
“For the first period of time, the Court finds that Mr.
Kennedy and [Kara] meet the requirements for a
cohabitation finding pursuant to Family Code section 4323
based upon the fact that Mr. Kennedy spent, depending on
the testimony of both, up to 71% of this time living under
the same roof with [Kara] and the daughter they shared.
The court finds that Mr. Kennedy did live outside of the
home for a couple of days a week when he stayed with his
parents. . . . More importantly, however, is the fact that
Mr. Kennedy did, during this period and beyond, pay
several household expenses, including the water, cable and
internet bills and food for the daughter and himself. In
addition, Mr. Kennedy testified that he had a shared bank
account with [Kara], though [Kara] argued that it was only
for their daughter and her needs. Further, the Court finds
that there has been a continuous intimate relationship
between [Kara] and Mr. Kennedy since 2015. [Kara] used
this fact to support her argument that this was the same
situation at the time the Family Court made its findings in
the Judgment. The facts before the Court demonstrate that
[Kara] moved to a new residence after the Family Court
trial and it is there that Mr. Kennedy then began to spend
up to 71% of his time per week together with [Kara], her
other kids and their daughter.
“After considering Family Code section 4323 and the
applicable case law, the Court finds that [Kara], in spite of
the significant cohabitation with Mr. Kennedy, had a
decreased need for spousal support, but does not find that
under the circumstances present, prior to April 1, 2020,
that it would be just to set spousal support at zero or
terminate it.
“Under Family Code section 4320, the Court finds that for
the period of April 1, 2018 through March 31, 2020, [Kara]
had a decreased need for spousal support given her
8
intimate relationship with Mr. Kennedy and the factors
noted above regarding his financial support.”
The court subsequently added: “Beginning April 1, 2020, the Court
finds ‘cohabitation in an intimate relationship’ within the plain meaning of
the language used in the Judgment due to Mr. Kennedy’s full-time
cohabitation with [Kara] from that date forward, and according to the terms
of the Judgment, sets spousal support at a reserved order.”
John timely filed a notice of appeal.
DISCUSSION
A. John’s Contentions
John argues that the court found that Kara and Kennedy were
cohabitating as of July 2017 when Kara moved into her new residence. He
thus contends that, under the express language of the Judgment, his
obligation to pay spousal support terminated at that time. He also argues
that upon the termination event (the July 2017 cohabitation), the court was
divested of jurisdiction and could take no further action, including reducing
spousal support to $3,500 during the period of April 1, 2018 to March 31,
2020 and setting a reserved order. We reject these contentions.
B. Relevant Law and Standard of Review
Section 4330, subdivision (a) permits a trial court to “order a party to
pay for the support of the other party an amount, for a period of time, that
the court determines is just and reasonable, based on the standard of living
established during the marriage, taking into consideration the circumstances
as provided in Chapter 2 (commencing with Section 4320).” Section 4320 sets
forth a number of circumstances relevant to setting spousal support,
including the extent to which each party’s earning capacity is sufficient to
maintain the standard of living established during the marriage (subd. (a));
the extent to which the supported party contributed to the supporting party’s
9
training or career (subd. (b)); the supporting party’s ability to pay (subd. (c));
each party’s needs based on the marital standard of living (subd. (d)); each
party’s assets and obligations (subd. (e)); the duration of the marriage
(subd. (f)); the age and health of the parties (subd. (h)); the balance of
hardships to each party (subd. (k)); the goal that the supported party be self-
supporting within a reasonable time period (subd. (l)), and any other factors
the court deems just and equitable (subd. (n)).
A spousal support award may be modified only if the court first finds a
material change in circumstances since the time the prior order was entered.
(In re Marriage of Dietz (2009) 176 Cal.App.4th 387, 396 (Dietz).) “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
Smith (1990) 225 Cal.App.3d 469, 480.) A change of circumstances includes
all factors affecting the supported spouse’s needs and the supporting spouse’s
ability to pay (In re Marriage of West (2007) 152 Cal.App.4th 240, 246 (West)),
including cohabiting with a nonmarital partner. (See § 4323, subd. (a)(1)
[“there is a rebuttable presumption, affecting the burden of proof, of
decreased need for spousal support if the supported party is cohabiting with a
nonmarital partner”].) Thus, if the supported spouse cohabitates with a
nonmarital partner, that spouse must show his or her “need for spousal
support had not diminished.” (In re Marriage of Schroeder (1987) 192
Cal.App.3d 1154, 1161.)
If there is a material change in circumstances, the court evaluates
whether to modify spousal support based on the same factors that apply in
setting initial spousal support awards. (§ 4320; West, supra, 152 Cal.App.4th
at p. 247; In re Marriage of Shaughnessy (2006) 139 Cal.App.4th 1225, 1235
(Shaughnessy).) Although the trial court must consider all of the enumerated
10
factors under section 4320, it has broad discretion as to the weight to give
each factor. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 304.)
We review a trial court’s modification of spousal support for abuse of
discretion. (Dietz, supra, 176 Cal.App.4th at p. 398.) In exercising its
discretion, the trial court must apply established legal principles and base its
findings on substantial evidence. (Shaughnessy, supra, 139 Cal.App.4th at
p. 1235.) If the trial court follows these requirements, its order modifying
spousal support will be upheld regardless of whether the appellate court
would have made the same order. (Ibid.)
C. Analysis
Below, the court “conducted a thorough review of all applicable factors
pertaining to spousal support and weighed them in arriving at the
modification to $3,500 per month for the time period of April 1, 2018 through
March 31, 2020.” And beginning on April 1, 2020, the court set “a reserved
order for spousal support.” In reaching these conclusions, the court explained
that it reviewed previous orders for spousal support, the Gavron warning
given to Kara, and the arguments of counsel while considering the
applicability of section 4323 and the issue of cohabitation. In addition, the
court explicitly stated it “conducted an analysis within the framework of the
Judgment[.]”
The court found a change of circumstance warranted a modification of
spousal support from April 1, 2018 to March 31, 2020. To this end, it
explained that it found that Kara and Kennedy were cohabitating up to 71
percent of the time from April 1, 2018 to March 31, 2020. Further, the court
determined that, during this period, Kennedy paid several household
expenses and shared a bank account with Kara. Although Kara had argued
that the circumstances were the same as when the court previously ordered
11
spousal support in the amount of $7,500, the court disagreed, finding a
“substantial change of circumstances[.]”
Finding that Kara and Kennedy were in an intimate relationship,
cohabiting up to 71 percent of the time, and Kennedy was paying for some
household expenses, the court concluded that Kara had a decreased need for
spousal support. As such, the court reduced the amount of support by over 50
percent. Further, the court explained how the factors under section 4320
impacted its analysis. The court, however, determined that it would not be
just to set spousal support at zero or terminate support all together during
the period of April 1, 2018 to March 31, 2020.
The court then explained that it found “[b]eginning April 1,
2020, . . . ‘cohabitation in an intimate relationship’ within the plain meaning
of the language used in the Judgment due to Mr. Kennedy’s full-time
cohabitation with [Kara] from that date forward, and according to the terms
of the Judgment, set[ ] spousal support at a reserved order.” In making this
finding, the court rejected Kara’s argument that her cohabitation with
Kennedy was one of necessity based on the COVID pandemic and should not
be viewed as “cohabitation in an intimate relationship.”
In the instant matter, John does not appear to be challenging any of
the court’s factual findings. Rather, John asserts that the court found that
Kara and Kennedy were cohabitating “as of when [Kara] moved to her new
residence post judgment in 2017.” Based on this alleged finding, John then
argues that, per the terms of the Judgment, his obligation to pay spousal
support terminated in July 2017 and the court was without jurisdiction to
extend spousal support past that date. In other words, John insists the court
should have ordered spousal support terminated upon a finding of
12
cohabitation in July 2017 and taken no further action on the issue. We reject
John’s argument for two primary reasons.
First, there does not appear to be support in the record that the court
found Kara and Kennedy were cohabitating in July 2017. Indeed, in the
court’s written order, there is no such finding. Instead, the court indicated
that it found that, during the period of April 1, 2018 through March 31, 2020,
Kara and Kennedy were cohabitating “up to 71” percent of the time, and
Kennedy was paying some household expenses. Further, it appears the court
used the starting state of April 1, 2018 based on John’s arguments below:
“[John] argued that [Kara] had been cohabitating and in an intimate
relationship within the plain meaning of Family Code section 4323 for years,
and that spousal support should be terminated, or set at zero, beginning
April 1, 2018.” Here, John does not claim the court misconstrued his
argument. However, he baldly concludes the court found cohabitation as of
July 2017. The court did not make that finding. Rather, the court expressly
stated that it found cohabitation, under section 4323, for “the first period of
time,” which was April 1, 2018 through March 31, 2020.
Second, John does little more than to assert that spousal support
terminated upon the finding of cohabitation and, on the basis of such finding,
the court lost jurisdiction to take any further action regarding spousal
support. In making this argument, John does not provide us with any legal
authority. He does not discuss the terms of the Judgment and explain why
the court’s finding of cohabitation, as of April 1, 2018, resulted in the
termination of spousal support. Instead, he merely concludes that it is so.
Such a cursory argument does not carry the day.
“The burden of affirmatively demonstrating error is on the appellant.”
(Fundamental Investment etc. Realty Fund v. Gradow (1994) 28 Cal.App.4th
13966, 971; In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 822
(Falcone).) “Appellate briefs must provide argument and legal authority for
the positions taken. ‘When an appellant fails to raise a point, or asserts it
but fails to support it with reasoned argument and citations to authority, we
treat the point as waived.’ ” (Nelson v. Avondale Homeowners Assn. (2009)
172 Cal.App.4th 857, 862 (Nelson); see United Grand Corp. v. Malibu
Hillbillies, LLC (2019) 36 Cal.App.5th 142, 146 (Malibu Hillbillies) [“ ‘In
order to demonstrate error, an appellant must supply the reviewing court
with some cogent argument supported by legal analysis and citation to the
record’ ”].) In addition, we do not scour the record and make arguments on
the appellant’s behalf. (See Falcone, at p. 830 [“We are not bound to develop
appellants’ arguments for them”].)
Here, John asserts the court’s finding of cohabitation terminated
spousal support under the Judgment, but he does not explain why. In the
absence of any argument supported by legal analysis, we deem this issue
waived. (See Malibu Hillbillies, supra, 36 Cal.App.5th at p. 153; Nelson,
supra, 172 Cal.App.4th at p. 862.) Moreover, even if we considered John’s
argument on the merits, we would find it wanting.
The Judgment established spousal support at $7,500 per month,
effective April 1, 2017 through March 31, 2021, at which time it would be
reduced to $5,000 per month until death, remarriage, cohabitation in an
intimate relationship or further order of the court. Below, Kara argued that,
under the terms of the Judgment, spousal support could not be terminated by
“cohabitation in an intimate relationship” until, at the earliest, March 31,
2021. The court rejected Kara’s interpretation of the Judgment, observing
that such an interpretation was “not consistent with the plain meaning” of
the Judgment and “just doesn’t make sense.”
14
However, the court was not persuaded by John’s argument that if it
found that Kara was cohabiting (“of any form”) with Kennedy then spousal
support must be terminated. Moreover, the court emphasized that it would
need to consider the definition of cohabitation because it had not found that
Kennedy lived with Kara full-time during the entire period in question.
Thus, the court declined to follow Kara’s interpretation of the
Judgment that cohabitation could not be considered until March 31, 2021.
And it rejected John’s argument that any cohabitation qualified as
“cohabitation in an intimate relationship” as set forth in the Judgment. The
court then considered the evidence and applied that evidence to the factors
set forth in section 4320 and the presumption in section 4323 to fashion, what
it believed to be, a fair and just result considering the circumstances. As
such, the court, based on its finding of changed circumstances, significantly
reduced spousal support from the period of April 1, 2018 to March 31, 2020.
Then it found that, as of April 1, 2020, Kara and Kennedy were cohabitating
in an intimate relationship as specified in the Judgment and thus spousal
support should be reduced to zero. Implicit in the court’s reasoning is that it
determined “cohabitation in an intimate relationship” as set forth in the
Judgment required that Kara be living full time with an intimate partner.
Here, where John does not provide any argument explaining why the court’s
interpretation of “cohabitation in an intimate relationship” is erroneous and
does not challenge any of the factual findings made by the court, John does
not even provide us with an avenue in which to consider whether the court
abused its discretion. Moreover, on the record before us, we are satisfied it
did not.
We next turn to John’s argument that the court lacked jurisdiction to
modify the spousal support after making a finding of cohabitation.
15
Specifically, John contends the court could not have modified the amount of
spousal support after finding that Kara and Kennedy were cohabitating in
July 2017, unless one of the parties moved to modify or extend spousal
support before July 2017. Therefore, John asserts the court had no
jurisdiction to modify the spousal support after July 2017 and erred in
reducing spousal support to $3,500 per month for the period of April 1, 2018
through March 31, 2020. We disagree.
As we discussed ante, the court did not find “cohabitation in an
intimate relationship” as set forth in the Judgment as of July 2017. Thus, for
this reason alone, we find John’s argument has no merit.
In addition, John’s contention makes little sense on the record before
us. Among other contingencies, the Judgment declares that spousal support
ends if there exists “cohabitation in an intimate relationship.” However, that
phrase is neither defined in the Judgment nor the Family Code. Further, it
is clear the parties do not agree on what the phrase means. John takes the
position that any cohabitation, in any form, satisfies the contingency. Kara,
on the other hand, argues that the contingency cannot even be considered
until March 31, 2021. She also disagreed below that she is cohabitating in an
intimate relationship as of Apri1 1, 2020, despite Kennedy living with her full
time. To this end, she argued that Kennedy was not cohabitating with her in
an intimate relationship but was staying with her out of necessity because of
the COVID pandemic. These arguments make clear that court intervention
was necessary here to determine whether “cohabitation in an intimate
relationship” exists. In other words, if one of the parties believed that
contingency was triggered and the other party disagreed, then a petition to
modify spousal support would be the logical means to resolve the
disagreement. And that is precisely what occurred here. John brought a
16
petition to modify the amount of spousal support on March 16, 2018. He did
so after the date on which he argues the court lacked the jurisdiction to act.
It borders on nonsensical to argue that a court has no jurisdiction to act on
the very issue one petitions the court to address.
Finally, we are not troubled by the court’s reservation order on the
spousal support issue after setting the support amount at zero. As noted in
In re Marriage of Ousterman (1996) 46 Cal.App.4th 1090 (Ousterman), In re
Marriage of Vomacka (1984) 36 Cal.3d 459 (Vomacka) and its progeny held
that the court had jurisdiction to extend support beyond the agreed upon date
for termination of spousal support, unless the agreement explicitly states an
intent to preclude jurisdiction to extend support beyond the specified
expiration date. (Ousterman, at p. 1097.) In Vomacka, the spousal support
agreement provided for payment of a specified amount of support “ ‘until
further order from the Court, the death of either party, the remarriage of
[wife], or August 1, 1982, whichever first occurs. The Court shall retain
jurisdiction regarding spousal support until September 1, 1984, at which time
[wife’s] right to request spousal support from [husband] shall terminate
forever.’ ” (Vomacka, at pp. 461-462, original italics.)
In concluding the court retained jurisdiction to modify support after the
date specified in the support agreement, the court in Ousterman explained
that in Vomacka, supra, 36 Cal.3d 459, “The court rejected the husband’s
argument that jurisdiction over support ended on the date specified in the
original agreement, finding that the court had jurisdiction until that date to
modify the award, including to extend the duration of support.” (Ousterman,
supra, 46 Cal.App.4th at pp. 1095-1096.)
In Vomacka, the court’s finding of implied retention of jurisdiction to
extend support beyond the support termination date was based on the
17
following policy reasons: “First, especially in the case of marriages of long
duration, orders providing for absolute termination of spousal support on a
specified date are disfavored unless the record clearly indicates the supported
spouse will be able to adequately meet his or her financial needs at the time
specified for termination. ([Vomacka, supra,] 36 Cal.3d at p. 467.) Second,
‘where there is an ambiguity in the language of a marital property agreement
it must be decided in favor of the right to spousal support.’ (Id. at p. 469.)
Finally, ‘language in a spousal support order suggesting that modification of
its terms will be permitted is routinely interpreted as a retention of the
court’s fundamental jurisdiction to modify and, upon a proper factual
showing, to extend the spousal support provisions contained therein.’ (Id. at
p. 470.)” (Ousterman, supra, 46 Cal.App.4th at p. 1096.)
As concluded in Ousterman, Vomacka, and their progeny, “ ‘to be
effective, language in a marital agreement intended to preclude jurisdiction
to extend support ha[s] to be stated rather explicitly. Implications drawn
from the agreement suggesting possible intention to reserve jurisdiction
would be favored.’ ” (Ousterman, supra, 46 Cal.App.4th at p. 1097, quoting In
re Marriage of Jones (1990) 222 Cal.App.3d 505, 512.)
In the instant matter, the Judgment does not contain any language
precluding the court’s jurisdiction. Indeed, the Judgment set spousal support
at $7,500 until March 31, 2021 at which date it would be reduced to $5,000.
Therefore, although spousal support is subject to modification, the Judgment,
on its own terms, contemplated support lasting beyond March 31, 2021. That
said, the Judgment did list certain circumstances in which spousal support
would end. Accordingly, the Judgment stated that spousal support would
continue “until death, remarriage, cohabitation in an intimate relationship or
further order of the court.” Yet, we do no read these potential termination
18
circumstance as explicitly stating the court would lose jurisdiction at that
point. Further, the court issued a reserve order as to spousal support at the
same time it decreased the amount of spousal support for a period and then
reduced it to zero. And it did so in response to a petition brought by John.
Without such petition, there would have been no finding supporting the
reduction of spousal support to zero. Therefore, the court did not err in
issuing an order continuing its jurisdiction even after it concluded spousal
support should be set at zero upon its finding of “cohabitation in an intimate
relationship.” (See Vomacka, supra, 36 Cal.3d at p. 461; Ousterman, supra,
46 Cal.App.4th at p. 1097.)
Additionally, John’s and Kara’s marriage was determined to be of long
duration,8 and the court’s jurisdiction is assumed under the Family Code.
“An order for spousal support terminates at the end of the period provided in
the order and shall not be extended unless the court retains jurisdiction in
the order or under Section 4336.” (§ 4335.) “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 or for legal separation of the parties where the marriage is of long
duration.” (§ 4336, subd. (a).) Consequently, sections 4335 and 4336 support
the court issuing a reserve order below.
In short, we conclude that, because the Judgment does not expressly
state that jurisdiction over support terminated on a date certain or upon the
occurrence of some event, the trial court had jurisdiction to enter a reserve
order.
8 In general, a marriage that lasts 10 years or more, from the date of
marriage to the date of separation, is a marriage of long duration. (§ 4336,
subd. (b).)
19
DISPOSITION
The order is affirmed. The parties are to bear their own costs on
appeal.
HUFFMAN, Acting P. J.
WE CONCUR:
O’ROURKE, J.
DATO, J.
20