In re Marriage of Khera & Sameer: The court presumes that the parties arrived at a fair support award that considered all of the circumstances.
By Garrett C. Dailey, Family Law Specialist
FACTS: Parties married in 1986 and H filed Petition for Dissolution in 2003. They had 3 children. Parties’ 2008 judgment provided W monthly spousal support (s/s) of $2,650/mo., stepping down to $1,650 until 6/1/2010, when it would be reduced to zero unless W filed a motion and showed good cause why it should be continued. Judgment also required H to pay of W’s reasonable child care expenses through 10/2007 to permit W to obtain a MSW degree.
In 3/10, W filed OSC to modify judgment and continue s/s, determine marital standard of living (MSOL), increase it to a level commensurate with MSOL, and include an Ostler/Smith order. She stated that she was enrolled in a Ph.D. program and only earning $9/hr as an associate social worker. Her income was ~$2,300/mo. and she was $87,000 in debt. She alleged H’s income had varied between approximately $600,000 and $400,000/yr.
Trial ct. denied her motion and Court of Appeal affirmed.
HELD: Motion to extend support past Richmond step-down properly denied where W failed to show “unrealized expectations” simply because she elected to continue her education past the MSW degree anticipated in Richmond order.
Richmond (see In re Marriage of Richmond (1980) 105 Cal.App.3d 352), orders are issued when it is anticipated that if the supported spouse exercises reasonable diligence, s/he will have become self-supporting by the date set for support payments to end. It “psychologically prepares the supported spouse for the time when he or she must be self-supporting. It also places the burden of showing good cause for a change in the order upon the one who is most able to exercise the control necessary to meet the expectations the trial judge had in making the order.” (In re Marriage of Khera & Sameer, supra, 206 Cal.App.4th at
Marriage of Khera & Sameer: Condition for Spousal Support modification
W required to show changed circumstances to modify a Richmond order. If she was unable to become self-sufficient despite her best efforts, that may constitute “unrealized expectations” and constitute a change of circumstances. Here, rather than complete her MSW degree and enter the workforce as anticipated, W elected to continue her education and seek a more advanced degree. She did not show that despite her best efforts she was unable to support herself.
“[A] voluntary decision to pursue a doctoral degree rather than entering the working world fulltime does not constitute a material change of circumstances in the context of this case.” (In re Marriage of Khera & Sameer, supra, 206 Cal.App.4th at p. 1481.)
“The burden of producing evidence was on . . . the moving party. [Citations.] She did not present evidence of the marital standard of living or her needs based on that standard. [Wife] did not show that she had made reasonable efforts to become fully self-supporting before June 1, 2010 but was unable to do so under the prevailing economic conditions. Based on the evidence before it, the court did not abuse its discretion in refusing to modify the judgment to extend spousal support.” (In re Marriage of Khera & Sameer, supra, 206 Cal.App.4th at pp. 1484-1485.)
Gavron warning not required for Richmond order: W argued that her spousal support could not be terminated because the judgment did not contain a Gavron warning. (See In re Marriage of Gavron (1988) 203 Cal.App.3d 705.) Court of Appeal disagreed.
The key issue in Gavron was whether the supported spouse was aware of the duty to become self-supporting. That was not a problem in this case:
“We have no reason to suppose that [wife] was unaware of the expectation that she become self-supporting by June 1, 2010 since [wife] submitted to a vocational assessment which resulted in a report regarding her job readiness and her potential salary range shortly before the agreeing to the stipulation. The stipulation provided . . . [for] annual step-downs in spousal support over a three-year period, ending with zero spousal support unless she showed ‘good cause’ to continue support. [As stated in Gavron] . . . ‘awareness of the judicial expectation of future self-sufficiency can arise in numerous contexts.’ ” (In re Marriage of Khera & Sameer, supra, 206 Cal.App.4th at pp. 1478-1479, fn. 4.)
Showing of Changed Circumstances Required for Modification: The clear implication of the judgment was that, absent unforeseen circumstances, W was expected to complete her MSW degree and be fully self-supporting by 6/1/10. She failed to obtain her degree or to prove reasonable efforts to become self-supporting such that there was a change of circumstances in the form of “unrealized expectations.” Without changed circumstances, modification was not permitted.
“ ‘A motion for modification of spousal support may only be granted if there has been a material change of circumstances since the last order. [Citation.] Otherwise, dissolution cases would have no finality and unhappy former spouses could bring repeated actions for modification with no burden of showing a justification to change the order. Litigants “ ‘are entitled to attempt, with some degree of certainty, to reorder their finances and lifestyle [sic] in reliance upon the finality of the decree.’ ” [Citation.] Absent a change of circumstances, a motion for modification is nothing more than an impermissible collateral attack on a prior final order. [Citation.]’ ” (In re Marriage of Khera & Sameer, supra, 206 Cal.App.4th at p. 1479.)
The change of circumstances rule “provides legal protection to marital settlement agreements.” (In re Marriage of Khera & Sameer, supra, 206 Cal.App.4th at p. 1479.)
Does Increased Inequality of Income constitutes a material change of circumstance?
W argued that the Court should consider that H was currently earning ~$389,000 and she only ~$2,300/mo. as a reason to modify spousal support.
“ ‘[E]quality of post-separation income is not an element of [Family Code section 4320] in setting spousal support. [Citation].’ [Citation.] A fortiori, an increased inequality of income is not in itself a material change of circumstance.” (In re Marriage of Khera & Sameer, supra, 206 Cal.App.4th at p. 1482.)
Wife’s increased debt not per se a change of circumstances: Although W stated in her declaration that she had $87,000 in debt, she did not explain its origin or state facts showing that her debt had significantly increased since the judgment despite her reasonable
efforts to become self-sufficient. Court of Appeal held that was insufficient to find a change of circumstances:
“ ‘[I]t would defeat the intent and reasonable expectations of the parties that [the supported spouse] would achieve self-support if the court allowed her to manufacture a change in circumstances by going into debt far beyond her means’ . . . .” (In re Marriage of Khera & Sameer, supra, 206 Cal.App.4th at pp. 1482-1483.)
Party may not collaterally attack stipulated spousal support order on the basis that it did not establish the MSOL; stipulation presumes parties considered all factors, including MSOL.
In re Marriage of Khera & Sameer (2012) 206 Cal.App.4th 1467 [143 Cal.Rptr.3d 81]
Elia, J. DCA6
FACTS: See Facts discussed above. W argued that since stipulated judgment failed to specify marital standard of living, she was entitled to prove it up at motion to modify. Court of Appeal disagreed.
“Ordinarily, the court must make specific factual findings with respect to the standard of living during the marriage. (See [FC] §4332.) But in this case, the amount and duration of spousal support was established by the parties’ agreement. ‘The court, by including the stipulation [regarding spousal support] in its own decree, presumes that the parties arrived at a fair support award, after arm’s-length negotiations, that took into consideration all of the circumstances as they then existed.’ [Citation.] [Wife] cannot now collaterally attack the judgment on the ground that the court did not establish the marital standard of living.” (In re Marriage of Khera & Sameer, supra, 206 Cal.App.4th at p. 1484.)
Garrett C. Dailey is a Certified Family Law Specialist focusing on appellate issues and consultations, a Fellow in American Academy of Matrimonial Lawyers and publisher/co-author of ATTORNEY’S BRIEFCASE® CALIFORNIA FAMILY LAW, California’s oldest provider of self-contained legal research software. BriefCase is available online and through the Attorney’s BriefCase iPad® app. For more information visit them at www.atybriefcase.com. Also check out their FREE legal education log at www.MyLegalEducationLog.com.