Opinion
H042793
03-14-2017
In re the Marriage of JOLINDA and FERDINAND PASCUAL. JOLINDA PASCUAL, Appellant, v. FERDINAND PASCUAL, Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Benito County Super. Ct. No. FL-06-00271)
Appellant Jolinda Pascual appeals the trial court's order after judgment that both increased the spousal support she receives from respondent Ferdinand Pascual and established a stepdown schedule which reduces spousal support to zero after five years. She argues that the stepdown order was an abuse of discretion. Because we find the stepdown order was based on speculation and not reasonable inferences drawn from the evidence, we will reverse the order.
I. TRIAL COURT PROCEEDINGS
Jolinda and Ferdinand divorced in 2009 after over 20 years of marriage. The judgment of dissolution set spousal support owed to Jolinda at $700 per month; that amount would increase to $1,600 per month after a few months. The judgment ordered spousal support to continue "until either party dies, until wife remarries, or until further order of the court."
Because the parties have the same surname, and meaning no disrespect, we refer to them by their first names.
The parties entered multiple stipulations modifying spousal support based on changes in Ferdinand's income and employment status. The last of those stipulations, filed in 2011, provided for Ferdinand to pay $991 per month in spousal support, plus "additional support (Smith/Ostler) for any income over $4,583.00 per month."
Jolinda requested a modification in 2015, arguing that she was entitled to greater support because Ferdinand's income had significantly increased since 2011. Jolinda disclosed in her income and expense declaration that the average spousal support she received was slightly less than $1,400 per month and that in the preceding month the actual support amount was $1,486. Ferdinand opposed Jolinda's request, arguing that spousal support should be terminated because Jolinda was cohabiting with a man named Ruben.
At a hearing, the trial court expressed its expectation that "at some point in time [support] would be below the judgment amount and reduced to zero at some point in the future." Jolinda's counsel stated that Jolinda would likely continue needing support going forward because of a permanent disability that precluded her from working. The court responded: "I don't think that [Jolinda] can expect that for the rest of her lifetime she's going to be expecting spousal support from [Ferdinand]. If that's what she's expecting, she probably needs to have an attitude adjustment. [¶] ... I don't think anyone should expect for the rest of their life that they'll be receiving spousal support. I just don't think that's reasonable. I guess the point is: What is [Jolinda] doing to change her circumstances?"
The trial court held an evidentiary hearing on the parties' competing requests. Jolinda testified that she lives alone in a trailer on a dairy farm. She had been dating Ruben for three years. They were not engaged, but she wore a promise ring he gave her. Jolinda testified that Ruben lived with her in the trailer for a short time but that he was then living with his parents in San Jose, although he sometimes spent the night at Jolinda's trailer if he had the night off from work. Ruben paid Jolinda $300 per month as rent to keep his horses. Ruben co-signed for a car Jolinda bought but he did not contribute financially toward the purchase. Jolinda testified she could turn to Ruben if she needed money for something like food or medicine. Ferdinand's counsel did not contest Jolinda's inability to work due to a permanent disability for which she receives monthly payments from the Social Security Administration.
Ruben testified that he lives with his parents, pays them rent, and helps care for his blind brother. He works the graveyard shift as a security guard. He spends the night with Jolinda on the two nights of the week when he does not work. Ruben stated that he visits Jolinda almost every day in order to care for his three horses that live on the property she rents.
Two of the parties' daughters testified about Jolinda's relationship with Ruben. Kimberly Pascual, who lives with Ferdinand, testified that she thought Jolinda and Ruben were living together based on statements Jolinda had made to her in the past. Kimberly acknowledged that she had never visited Jolinda's current residence and also that Jolinda had never expressly told her she was living with Ruben. Lindsey Pascual, who also lives with Ferdinand, testified that she believed Jolinda and Ruben were living together because Ruben is almost always at Jolinda's trailer when she visits. She acknowledged that she had never actually been inside Jolinda's trailer because she usually meets Jolinda at a restaurant.
The trial court signed a statement of decision reflecting its findings and decision. The trial court found that Ferdinand's income had increased from $4,583 at the time of the 2011 stipulation to an average of $7,200 per month, which it found was "a significant change in circumstance supporting a motion to modify the spousal support order." Ferdinand's current income was less than he earned during the marriage, "but sufficient to maintain the marital standard of living." By contrast, Jolinda's only income other than spousal support was $590 per month from the Social Security Administration for her permanent disability. Regarding cohabitation, the court found that "Jolinda is in a committed relationship with a man, but did not conclude that she is currently cohabiting with him." Ruben "has provided some financial assistance to her, even if not cohabiting." The court determined that Jolinda demonstrated a continuing need for support and that her expenses were reasonable in light of the marital standard of living. Finding that Ferdinand could afford to continue paying support, the trial court ordered him to pay Jolinda $1,500 per month.
The statement of decision was drafted by counsel for Jolinda. Ferdinand did not object to the statement of decision.
Though the court found her expenses reasonable overall, it questioned the reasonableness of Jolinda's purchase of a car that had a $470 monthly payment: "I never understand why people spend all their money on four wheels and a steering wheel, four tires and a steering wheel. You are crying and complaining about being unable to afford your expenses and you buy a brand-new Dodge Charger, which is kind of a muscle car. Tell me the sense that that makes. You can't afford your expenses, but you are buying a fancy muscle car. You want Mr. Pascual to pay for your lifestyle."
The court also included a stepdown order, under which the monthly support payment would be reduced by $300 each year for five years. The statement of decision reasons that the "support amount should be periodically reduced to give Jolinda time to become self-supporting or [to] establish a more permanent relationship with [Ruben]." The stepdown order was added sua sponte at the hearing. After confirming that there was no existing schedule for reducing support, the court fashioned the stepdown order, explaining that it "would give [Jolinda] time to become self-supporting or to establish a more permanent relationship with [Ruben]." The court continued: "There is assistance, financial assistance between [Ruben] and [Jolinda] regardless of whether they're living together. [¶] If there's a promise between the parties to maintain a relationship, [Jolinda] should be looking forward to the future with [Ruben] rather than looking in the rearview mirror to [Ferdinand]."
II. DISCUSSION
A. SPOUSAL SUPPORT MODIFICATION AND STANDARD OF REVIEW
We review a trial court's decision to modify spousal support for abuse of discretion. (In re Marriage of Khera and Sameer (2012) 206 Cal.App.4th 1467, 1480.)
Trial courts retain discretion indefinitely to make spousal support orders where, as here, the marriage was of long duration. (Fam. Code, § 4336, subd. (a). Unspecified statutory references are to this code.) In exercising that discretion, a trial court must consider the factors in section 4320. (In re Marriage of Shimkus (2016) 244 Cal.App.4th 1262, 1273.) As relevant here, those factors include the earning capacity of each party; each party's needs based on the standard of living during the marriage; the assets and expenses of each party; the ability of the parties to work; the parties' age and health; and the balance of hardship to each party. (§ 4320, subds. (a)-(n).)
To obtain a modification, a party must show a material change in circumstances since the last order, meaning "a reduction or increase in the supporting spouse's ability to pay and/or an increase or decrease in the supported spouse's needs." (In re Marriage of West (2007) 152 Cal.App.4th 240, 246.) Mere passage of time will not justify a modification. "With the passage of time, changed circumstances may occur, but it is the change in circumstances and not the passage of time which is material." (In re Marriage of Heistermann (1991) 234 Cal.App.3d 1195, 1202 (Heistermann).)
Stepdown orders like the one challenged here authorize reductions in support that will take effect in the future. They must therefore be based on reasonable inferences drawn from the evidence, not merely on hopes or speculation. (In re Marriage of Prietsch & Calhoun (1987) 190 Cal.App.3d 645, 656 (Prietsch).) "A trial court acting on a motion for modification of spousal support cannot engage in speculation as to what might possibly be, but is not reasonably certain to occur." (Id. at p. 659.) "At the request of either party, an order modifying ... a support order shall include a statement of decision." (§ 3654.) If there is a written statement of decision, that statement "controls over vague antecedent oral statements." (Heistermann, supra, 234 Cal.App.3d at p. 1203.)
B. STEPDOWN ORDER
The parties' arguments on appeal relate to a single issue: whether the trial court abused its discretion in making its stepdown order. Jolinda argues that the trial court abused its discretion by basing the order on speculation that her need for support would decrease if she continued her relationship with Ruben. Ferdinand argues that there was no abuse of discretion because the trial court made an implied finding that Jolinda was cohabiting with Ruben. The trial court's stated basis for the stepdown order was to "give Jolinda time to become self-supporting or establish a more permanent relationship with [Ruben]."
1. The Trial Court Expressly Found No Cohabitation
A finding that the supported party is cohabiting with a nonmarital partner creates "a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support." (§ 4323, subd. (a)(1).) Ferdinand argues that the trial court "impliedly found cohabitation between Jolinda and Ruben ... triggering the presumption of reduced need for support, which Jolinda failed to rebut." But Ferdinand's argument ignores the trial court's express finding to the contrary in the statement of decision: "The court received testimony on the question of cohabitation and found that Jolinda is in a committed relationship with a man, but did not conclude that she is currently cohabiting with him." We do not imply findings when the trial court makes express findings on the same point. (See Heistermann, supra, 234 Cal.App.3d at p. 1203.) And given the conflicting substantial evidence presented regarding cohabitation, Ferdinand has not shown as a matter of law that Jolinda was cohabiting with Ruben, as would be necessary to overturn the trial court's express finding.
2. No Evidence that Jolinda Could Become Self-Supporting
The trial court stated that the stepdown order would "give Jolinda time to become self-supporting." But no evidence supported a reasonable inference that Jolinda could become self-supporting within the five years covered by the stepdown order. To the contrary, it was undisputed that Jolinda could not work because she was permanently disabled. Jolinda's attorney was prepared to call Jolinda's physician to testify about her disability, but the court released the physician after Ferdinand's counsel stated that testimony about disability was not "pertinent" to the modification request. The trial court's finding that Jolinda could become self-supporting was speculation unsupported by any evidence in the record. Speculation is not a valid basis for a stepdown order. (Prietsch, supra, 190 Cal.App.3d at p. 656.)
3. No Evidence Supported a Reasonable Inference of Future Changed Circumstances
The trial court stated that the stepdown order would give Jolinda time to "establish a more permanent relationship with [Ruben]." Jolinda argues the trial court speculated that establishing a more permanent relationship with Ruben would reduce her need for spousal support from Ferdinand.
a. In re Marriage of Prietsch & Calhoun
Prietsch, supra, 190 Cal.App.3d 645, cited by both parties, is instructive regarding review of stepdown orders. Husband Calhoun and wife Prietsch divorced after a 24-year marriage. The parties stipulated that Calhoun would pay Prietsch spousal support. About two years later, they stipulated to reduce spousal support because of an increase in Prietsch's income. After two more years, Calhoun moved to terminate spousal support entirely, and Prietsch moved to increase support. (Id. at pp. 653-654.) The trial court found "Prietsch's needs 'far outweighed' her ability to be self-supporting, and Calhoun's financial responsibilities were 'well within manageable limits.' " (Id. at p. 654.) The court increased Prietsch's spousal support, but also entered a stepdown order reducing "the support amount by $100 a month on an annual basis, terminating spousal support ' absolutely and forever' " after a final payment. (Ibid.)
The Prietsch court found no evidence to " 'support a reasonable inference that needs will be less with each step-down and that the spouse can realistically be self-supporting at the time nominal payments are set to begin.' " (Prietsch, supra, 190 Cal.App.3d at p. 656.) The trial court in Prietsch "found changes in circumstances had occurred since the prior order, but the changes found by the court justified increasing Prietsch's award rather than decreasing it." (Ibid., italics added.) The Prietsch court rejected several arguments Calhoun raised regarding possible bases for the trial court's decision, finding no evidence in the record to support them. (Id. at pp. 657-659.)
b. Analysis
Because the trial court here expressly found that Jolinda and Ruben were not cohabiting, their relationship alone cannot justify the stepdown order. And the court's decision to increase the amount of present spousal support Jolinda receives from Ferdinand precludes a finding that Ruben's present financial assistance to Jolinda justified a support reduction.
Ferdinand inaccurately asserts, without citation to the record, that the trial court "expressly found substantial financial assistance was flowing to Jolinda" from Ruben. The trial court's actual finding in the statement of decision was that Ruben "has provided some financial assistance" to Jolinda. (Italics added.)
The only remaining question is whether other evidence in the record supports a reasonable inference that Jolinda would receive increasing future financial support from Ruben adequate to constitute a material change in circumstances justifying the annual reduction reflected in the stepdown order. We find no evidence supporting such an inference.
The stepdown order appears to have been based on the trial court's predisposition that spousal support not continue indefinitely and on a speculative and unsupported assumption that establishing a "more permanent" relationship with Ruben would eliminate Jolinda's need for support. The trial court's reference to a more permanent relationship appears to have envisioned cohabitation, triggering the section 4323 presumption of decreased need for support. But Jolinda and Ruben did not state any intention of living together or getting married. And there was no evidence that Ruben had any plans or ability to provide increased financial support to Jolinda going forward. The trial court's unsupported speculation about the future of Jolinda and Ruben's relationship cannot justify the stepdown order. (Prietsch, supra, 190 Cal.App.3d at p. 659.)
Jolinda argues that the stepdown order is improper because it effectively encourages "a divorced homemaker to make herself another man's dependent," which she asserts "is not a proper consideration for the court." Because the order must be reversed for lack of evidentiary support, we do not reach that argument.
Ferdinand's arguments, none of which is supported by citations to the record, are unpersuasive. He argues that Jolinda artificially inflated her expenses, received financial assistance from Ruben, and received monthly income from Ferdinand to pay for her community interest in Ferdinand's house. But the trial court considered those arguments and nonetheless concluded that "Jolinda demonstrated a continuing need for support and that her proposed needs are reasonable in light of the marital standard of living."
Ferdinand attempts to distinguish Prietsch by arguing that "a stepdown in support following an initial decrease in support, as occurred here, merely carries on the established trend of a decreasing need for support based on the same evidence giving rise to an initial reduction in support." That argument misstates the record. It is undisputed that before the challenged order, Jolinda was receiving $991 per month plus additional support when Ferdinand's income exceeded a certain amount. Jolinda declared that she received an average of slightly less than $1,400 per month in spousal support and that for the month immediately preceding her request for increased support the amount was $1,486. Because the challenged order set support at $1,500 per month, the court actually increased support. While the amount of support ordered was less than the $1,600 per month in the original judgment, that value is irrelevant because it was modified multiple times by stipulation.
Ferdinand's final argument is that the stepdown order here is different from the one in Prietsch because that stepdown order "terminated spousal support upon the final stepdown to zero dollars." (Citing Prietsch, supra, 190 Cal.App.3d at p. 654.) While the stepdown order here did not end with a termination of jurisdiction to award support, that distinction does not compel a finding in Ferdinand's favor. Aside from that difference, the orders in both Prietsch and the instant case reduce and then eliminate support without an evidentiary basis.
Our opinion should not be interpreted as precluding a future reduction in spousal support if it is properly supported. On the record before us, however, we find that the trial court's stepdown order was without evidentiary support and was therefore an abuse of discretion.
III. DISPOSITION
The order after judgment is reversed. The matter is remanded with instructions to enter a new order requiring Ferdinand Pascual to pay Jolinda Pascual $1,500 per month in spousal support until modified by further order of the court or terminated by operation of law. Jolinda Pascual is entitled to her costs on appeal.
/s/_________
Grover, J.
WE CONCUR:
/s/_________ Rushing, P. J. /s/_________ Walsh, J.