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Recent Developments in Spousal Support Modification Law

Recent Developments in the Law Regarding Spousal Support Modifications

During proceedings for a legal separation or marital dissolution, courts can order one party to pay the other "any amount that is necessary" for the other's support, based largely on need, ability to pay, and the marital standard of living. Courts can then order "permanent" spousal support based on the factors provided in Family Code section 43201 ( e.g. duration of marriage, health of the parties, marketable skills, ability to pay, one party's contribution towards the other party's attainment of education or training, time period that a party was out of the job market, etc.). Parties can also negotiate and agree upon "permanent" spousal support.

Spousal support orders are modifiable if the Court expressly or impliedly reserves jurisdiction over the issue. A modification to a "permanent" spousal support order can be made retroactive to the date the request for modification was initially filed. Generally, Courts can only modify spousal support orders if the requested party can demonstrate that there has been a "change of circumstances" since the Court's previous orders. Courts and parties can terminate spousal support for a number of reasons including providing a specific termination date, remarriage of a party, inability to pay, lack of need, etc.

In recent developments, three cases further clarify the circumstances warranting a spousal support modification and depicting the Court's broad discretion whether or not to make such orders.

Marriage of Left

In the recent case, Marriage of Left (In re Marriage of Left (2012) 208 Cal.App.4th 1137), the Court denied Andrew Left's request that the Court terminate an order requiring him to pay Andrea Left spousal support. In that case, the Parties entered a stipulated agreement for child support and spousal support and the Court also entered a "status-only" dissolution of the marriage in June of 2008. Thus, the Parties were divorced and support orders were in place, but the Court reserved the issue of property division for a later date.

In December 2008, Andrea became engaged to Todd. Although Andrea did not want to involve Todd with the divorce, she and Todd began planning their wedding. Andrea expected the remaining issues to be resolved within a couple months. Thus, she and Todd set a date for the wedding beyond that time, in May 2009. As time passed, Andrea and Todd realized that her case would not be resolved in time for the wedding. Andrea and Todd did not want to marry with her case still looming but they had already committed themselves financially and socially to the wedding. They decided to have a ceremony that would look like a wedding; she would wear her wedding dress, they would sign a ketubah, and her kids would be led to believe that they were married. But, the couple would not sign a marriage license. On May 2, 2009, the rabbi reluctantly went along with the ceremony in front of the guests, who thought they witnessed Andrea and Todd's marriage. The next month, Andrea informed Andrew that she had not actually married Todd.

Subsequently, in October, Andrew filed a request to terminate spousal support based on Andrea's "remarriage," the length of time he already paid spousal support, the short duration of the marriage, Andrea's failure to seek employment, and her cohabitation with Todd. Andrea also filed various requests based on Andrews failure to comply with the support orders. At a hearing on December 1, 2009, the trial court scheduled hearings on both Parties' requests for January 13, 2010. The Court stayed Andrew's spousal support obligation until the hearing and emphasized that Andrew had still not filed a current Income and Expense declaration in accordance with California Rules of Court and that he needed to do so.

The trial court's hearing on both Parties' requests spanned five days from January 28, 2010 until April 20, 2010. The trial court found Andrew guilty on nine of ten contempt account.

In May of 2010, Andrea filed an Order to show Cause seeking to amend the stipulated support order retroactively or for immediate disbursement of community funds. Andrew responded arguing the Court did not have jurisdiction to modify the stipulation retroactively. He also finally filed an updated Income and Expense Declaration in support of his request to terminate spousal support which he filed 7 months prior. On June 1, 2010, the trial court heard testimony and argument on both Andrea's and Andrew's Orders to Show Cause regarding spousal support. On September 14, the court issued its decision, finding that Andrea had not remarried, but her cohabiting with Todd was grounds for reducing spousal support from $32,547 a month to $20,000 a month. The court refused to make the order retroactive to the date of filing, reasoning that Andrew's failure to file a current Income and Expense declaration meant that he could not be given "'the time advantage of a retroactive modification date.'" The court made the modification effective as of May 15, 2010. It also increased child support from $14,590 a month to $19,075 a month, beginning May 15, and reserved jurisdiction over the start date.

Andrew appealed the Court Order, but the Second District affirmed the lower court's ruling.

Andrew argued that the lower Court misinterpreted section 4337 which states that spousal support terminates upon the recipient's remarriage, as long as there is no signed written agreement to the contrary. The court found that section 4337 is unambiguous and requires a legal marriage including a marriage certificate. Since Andrea and Todd did not have a marriage certificate, nor did they actually intend to be married legally at their ceremony, the court found they are not considered married. Therefore, the trial court did not misinterpret section 4337 and the spousal support order could not be modified based on the recipient's remarriage.

Andrew argued that the lower court failed to consider the short duration of the Parties' marriage in his request for modification. The court found that the trial court did consider the length of the Parties' marriage as only one factor among many other factors. The court further found that section 4320 provides a guideline, and not a rule, that spousal support should be paid for one-half the length of a marriage of short duration. The trial court also considered Andrew's slow payment of community property to Andrea along with Andrea's cohabitation and her ability to be self-supporting.

Lastly, Andrew argued that the trial court erred by failing to make the spousal support modification retroactive to the date of filing. The Justices disagreed with Andrew, stating that (1) retroactivity is a discretionary matter and (2) Andrew needed to file a current Income and Expense declaration since it was relevant to his relief sought and the trial court further warned him they would not consider his request until he filed one.

Given the court's broad discretion with respect to spousal support and retroactivity, this case reminds us that it is important for clients to cooperate and timely provide ordered information to the court and the Opposing Party. Otherwise, in a close call, the courts may use their discretion to the disadvantage of an uncooperative party.

Marriage of Freitas

In the Marriage of Freitas (In re Marriage of Freitas (2012) 209 Cal.App.4th 1059), Christine filed for divorce from Kevin based on a breakdown in the marriage, caused in part by his documented history of domestic violence (including a spousal battery conviction and a domestic violence restraining order). Subsequently, Kevin filed a request for spousal support. At a court hearing, the court ordered Christine to pay Kevin $800.00 per month in child support. The court declined to believe Kevin's contention that Christine misrepresented her income, but it reserved jurisdiction over the issue. However, the court made no mention of Christine's domestic violence allegations.

Subsequently, Christine filed a response to Kevin's Order to Show Cause, asking the trial court to set spousal support at zero, based on his history of domestic violence. She argued that the current award " 'enable[d] [Kevin] to continue to harass [her] and punish [her].' " On June 1, the trial court continued the hearing to allow the parties to address the applicability of section 4325, which provides that a criminal conviction for domestic violence raises a rebuttable presumption that temporary or permanent spousal support should not be awarded to the abuser. Following a court hearing on June 28, the court issued a written order, effective July 1, detailing Kevin's history of domestic violence, noting that he had produced no evidence to rebut the section 4325 presumption, and concluding that spousal support should be set at zero.

Kevin appealed the Order, arguing that Spousal Support should not be terminated because there was no change of circumstances.

The court found that although there was no change of circumstances, the trial court was required to consider documented evidence of domestic violence and initially had erred by not doing so. The court further found that "the changed circumstances rule should not be applied to require a trial court to leave in place an order that it would not have made if it had properly considered the applicable law."

In re Marriage of Khera and Sameer

In the Marriage of Khera and Sameer (In re Marriage of Khera and Sameer (2012) 205 Cal.App.4th 1464), Sameer Khera and Madhu Sameer reached a dissolution agreement (which they recited on the record), which provided for spousal support for Madhu. The agreement further set forth the Parties' understanding that Madhu would obtain her Masters in Social Work (MSW) and by a certain time, become self-supporting at which point spousal support would terminate.

Subsequently, Madhu moved to have the Judgment set aside and requested that spousal support be modified upwards based on Sameer's higher standard of living. Additionally, Madhu pursued a Licensed Clinical Social Worker degree (LCSW), which has a greater earning capacity than an MSW, but also takes longer to obtain. Thus, Madhu wanted the spousal support to be extended in duration since she was not yet self-supporting. The court denied Madhu's requests and Madhu appealed.

On appeal, the Justices found that, when there is a prior support order established in a marital settlement agreement and judgment of dissolution, a court can modify the order if there are "unrealized expectations." Essentially, unrealized expectations may constitute a change of circumstances requiring a modification. With that being said, based on their marriage settlement agreement, the Parties contemplated that Madhu would earn her MSW and then be able to be self-supporting. Thus, under the unrealized expectations approach, Madhu was expected to have obtained the degree and was required to show that she had made her best efforts at obtaining employment. Instead, Madhu did not present any evidence that she made any attempt to find employment, nor did she present evidence that she was unable to complete her MSW. The court also found that the burden lay with Madhu, rather than with Sameer, to set forth the evidence to show that jobs were available.

Madhu argued that the trial court abused its discretion by failing to establish the marital standard of living. However, the Justices noted that the Parties agreed on the spousal support amount and duration and thus Madhu could not collaterally attack that same Judgment. Ultimately, the justices found that since Madhu failed to set forth evidence to warrant modifying spousal support, the trial court did not err by refusing to modify her support.

1All further statutory references are to the Family Code unless otherwise indicated.