Marriage of Maher and Strawn ( 2021 )

Filed 4/22/21
CERTIFIED FOR PARTIAL PUBLICATION*
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of DAVID
MAHER and LAURIE STRAWN.
D076487
DAVID MAHER,
Appellant,
(Super. Ct. No. D562256)
v.
LAURIE STRAWN,
Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
David B. Oberholtzer, Judge. Affirmed.
Law Office of Patrick L. McCrary and Patrick L. McCrary for
Appellant.
Stephen Temko for Respondent.
* Pursuant to California Rules of Court, rule 8.1110, this opinion is
certified for publication with the exception of parts B‒D of the Discussion.
David Maher appeals from a judgment of dissolution of his marriage
with Laurie Strawn. He primarily contends there is insufficient evidence to
impute income to him and to step down the spousal support he is receiving.
In determining Laurie’s ability to pay David support, the court took
into account numerous circumstances, including that Laurie was spending
about $3,000 per month for their adult son’s college expenses. The
interesting question this case poses is whether the court may properly
consider that expense in determining her ability to pay spousal support.
There is conflicting authority on the issue. (Compare In re Marriage of Paul
(1985) 173 Cal.App.3d 913 (Paul) with In re Marriage of Serna (2000) 85
Cal.App.4th 482 (Serna).)
The trial court determined that the better reasoned cases—not the
least of which is the Supreme Court’s decision in In re Marriage of Epstein
(1979) 24 Cal.3d 76 (Epstein)—indicate that the court has discretion to
consider an adult child’s college expenses like any other expenditure of
discretionary income. The ultimate question in determining ability to pay is
whether the expense is reasonable and will result in a just and equitable
award of spousal support.
The main argument to the contrary is that supporting an adult child
reduces the supporting spouse’s available funds to pay spousal support. The
supported spouse, so the argument goes, is in effect being compelled to pay
adult child support, which the law prohibits. (Serna, supra, 85 Cal.App.4th
at p. 488.)
We acknowledge, of course, that David cannot be required to support
his adult child. Family Code1 section 3901, subdivision (a) prohibits that.
But the question here—whether Laurie’s choice to spend her discretionary
1 Undesignated statutory references are to the Family Code.
2
income on their adult child’s educational expenses may be considered on
equal footing with her other expenses—is distinctly different. As explained,
both Epstein and section 4320 compel the conclusion that a trial court may
appropriately consider a supporting spouse’s payment of adult children’s
college expenses in determining ability to pay spousal support.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Parties
After an 18-year marriage, David and Laurie separated in 2016. They
have two children—a son who at the time of trial was 20 years old, and a
daughter then age 18.
David, who is now 60 years old, has a Ph.D. in biochemistry and is also
a lawyer. He was the primary earner during the early years of the marriage.
From 1999 to 2008 he worked as a patent attorney, the last two years as a
sole practitioner in Maher Law. In 2004 after he earned $215,000, the couple
bought a $1.8 million home.2
About that same time, David began committing acts of domestic
violence. Laurie logged the “major incidents” on her computer. She stopped
keeping the diary in 2007 explaining, “He was hitting me so often I didn’t
have time to log events any longer.”3
In 2006 David was earning over $100,000 per year; however, he
stopped working in 2008 because of “health issues.” Maher Law is “defunct”
and owes back taxes.
2 In 2017, the parties sold the home for $2.2 million. Each received
$350,000 from the sale and an additional $440,000 remains to be distributed.
3 In ordering spousal support, the court shall consider, among other
circumstances, “Any history of violence against the supporting party by the
supported party.” (§ 4320, subd. (i)(3).)
3
David has sleep apnea, insomnia, post-traumatic stress disorder
(PTSD), anxiety, and severe depression. He testified that crowds, traffic, and
noise make him nervous, afraid, and exacerbate his anxiety and PTSD. He
remains mostly alone in his apartment and has to “force” himself to socialize.
Yet on cross-examination, David admitted traveling to Las Vegas in
2018 where he attended an indoor rock concert. He also attended “a few
concerts” at the Del Mar fair with a “social group” and at the House of Blues.
David takes Valium “a couple times a day,” along with anti-
depressants, anti-anxiety drugs, and hydrocodone—an opioid. He also drinks
“three to four” glasses of wine nightly, although he denies having a “drinking
problem.” David could not “recall” whether any physician told him to not mix
alcohol with his medications. He spends about $600 per month on wine—
three times his child support obligation. David testified that his PTSD and
anxiety disorder prevent him from working. And his sleep apnea and
insomnia preclude him from working regular hours because he is “exhausted”
and “unfocused.”
Still, David has worked occasionally as a track and field coach, which
he enjoys. In 2018, for example, he earned about $1,000 as a high school
track coach and was named “field coach of the year.” He is certified to coach
through the college level. In 2017 David obtained a substitute teaching
certificate, but he never sought those jobs because he does not awaken until
noon (due to his sleep disorder). He is unwilling to work tutoring grade
school or high school students, stating he has “patience issues.”
Bernard A. Michlin, M.D. “looked briefly at some medical records” and
spent 75 minutes interviewing and examining David. Michlin did not
independently diagnose David, nor did he contact any of his treating
physicians. Michlin opined that David has major depressive disorder, PTSD,
4
and anxiety that “can be extremely disabling” and which precludes him from
“any meaningful” employment in his area of law and intellectual property.
Michlin testified that David’s alcohol consumption was not a concern because
it would help him sleep.
Michlin believes David can do simple and repetitive work, like filing
papers, scanning documents, and data input. He also believes David is
capable of working as a part-time track and field coach. Michlin has
“significant hope” that David’s conditions will improve. He believes that
working full time would ameliorate David’s sleep disorder, anxiety, and
depression.
Laurie holds a Ph.D. and since 2004 has been employed by a
pharmaceutical company. She currently earns about $28,000 per month.
The parties separated in 2016. The triggering event was when David
(who is six feet, three inches tall, and weighs about 300 pounds) punched
Laurie in the face and slapped her during intercourse. Her nose bled “all
over the bed.” The next day, he assaulted their son (then 17 years old). Both
David and the son sustained injuries in the ensuing fist fight. Laurie told
responding police officers, “My nose still hurts, and I think it might be
broken. Today he was worse than usual.” Despite David’s testimony at trial
denying that he ever hit Laurie, in September 2016 the court issued a
domestic violence restraining order against him.
Laurie supports the parties’ adult son, who attends a state university.
She pays about $35,000 per year for his tuition and living expenses. She also
supports their daughter, who at the time of trial was graduating from high
school and would be attending a private university where tuition and living
expenses will be about $50,000 a year.
5
B. Dissolution Litigation
In June 2016 Laurie filed for dissolution of marriage. About a week
later, David filed his own petition.4 In December 2016 the court imputed
$1,733 per month to David, finding he “has the ability and opportunity to
earn minimum wage.” The court also ordered Laurie to pay $4,376 per
month in spousal support. Effective January 2017, the court increased that
to $6,218 per month.
After a five-day trial, in July 2019 the court issued a statement of
decision. It found David’s testimony “not credible” and his retained medical
expert, Dr. Michlin, to be “too much of an advocate.” The court noted that
David’s trips to Las Vegas and the county fair “belie his contention he cannot
function in crowds or when overstimulated.” Conversely, the court found
Laurie credible, noting “[s]he answered questions directly and without
hesitating.”
The court ordered Laurie to pay $4,000 per month in spousal support
for one year (until May 1, 2020), reduced to $3,500 until May 1, 2021, and
further reduced to $2,500 per month thereafter. The step-down order
reflected “the court’s conclusion [that David] can become fully employed if he
applies himself to overcoming his limitations.” The court issued a Gavron
warning,5 admonishing David that “he has an obligation to become self-
supporting within a reasonable time.”
The court imputed $1,000 per month of income to David, noting that
his recent work as a high school track coach demonstrates “he can obtain
4 Apparently, the cases were consolidated under David’s case number
with him as the petitioner.
5 See In re Marriage of Gavron (1988) 203 Cal.App.3d 705, 712.
6
employment” requiring “intellect.” It observed that this was less than “one-
half minimum wage” and that minimum wage jobs generally require “less
skill and intellect than coaching and officiating track.”
Although noting that Laurie has “an income to pay significant support,”
the court considered that she will be spending “substantial after-tax sums for
[David’s] children’s education.” It further determined that “sending children
to college is at least as much of the marital standard of living as the marital
home, vacations, what cars they drive, how often they go out to eat, etc.”
Citing section 4320, subdivision (n), the court concluded it had discretion to
consider Laurie’s payment of the adult children’s college expenses when
determining David’s spousal support.6
DISCUSSION
A. In Determining the Amount of Spousal Support, the Court May Consider
the Supporting Spouse’s Payment of Reasonable Educational Expenses for
Adult Children.
“ ‘Permanent spousal support “is governed by the statutory scheme set
forth in sections 4300 through 4360. Section 4330 authorizes the trial court
to order a party to pay spousal support in an amount, and 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 set forth in section 4320.” [Citations.] The statutory factors
include the supporting spouse’s ability to pay; the needs of each spouse based
on the marital standard of living; the obligations and assets of each spouse,
including separate property; and any other factors pertinent to a just and
equitable award. (§ 4320, subds. (c)‒(e), (n).)’ ” (In re Marriage of
Deluca (2020) 45 Cal.App.5th 184, 195.)
6 Section 4320, subdivision (n) provides that in ordering spousal support,
the court shall consider any factors it “determines are just and equitable.”
7
“ ‘ “In making its spousal support order, the trial court possesses broad
discretion so as to fairly exercise the weighing process contemplated by
section 4320, with the goal of accomplishing substantial justice for the parties
in the case before it. ‘The issue of spousal support, including its purpose, is
one which is truly personal to the parties.’ [Citation.] In awarding spousal
support, the court must consider the mandatory guidelines of section 4320.
Once the court does so, the ultimate decision as to amount and duration of
spousal support rests within its broad discretion and will not be reversed on
appeal absent an abuse of that discretion. [Citation.] ‘Because trial courts
have such broad discretion, appellate courts must act with cautious judicial
restraint in reviewing these orders.’ ” ’ [Citation.] An abuse of discretion
occurs ‘ “when it can be said that no judge reasonably could have made the
same order.” ’ ” (In re Marriage of Grimes & Mou (2020) 45 Cal.App.5th 406,
424 (Grimes & Mou).)
The issue raised here is whether the court may consider payments the
supporting spouse makes for an adult child’s college expenses, in the same
way that it considers other discretionary expenditures, in determining the
appropriate amount of spousal support. There is authority on both sides of
the question.
In the only Supreme Court case on point, the supporting spouse’s
monthly expenses included $350 for an adult child’s college education.
(Epstein, supra, 24 Cal.3d at pp. 81, 90.) Writing for a unanimous court,
Justice Tobriner held the trial court did not abuse its discretion in
considering that expense in setting spousal support. (Id. at p. 90.)
Several courts of appeal have reached similar conclusions. For
example, in In re Marriage of Kelley (1976) 64 Cal.App.3d 82 (Kelley), the
Second Appellate District, Division Four upheld an order reducing future
8
spousal support, stating the reduction was “justified by [the supporting
spouse’s] anticipated additional expense flowing from the enrollment of a
daughter in college.”7 (Id. at p. 95.) Similarly, in Marriage of Meegan (1992)
11 Cal.App.4th 156 (Meegan), Division Three of the Fourth Appellate District
affirmed a reduction of spousal support to zero where the supporting spouse
entered a monastery where he would earn no income—despite his continuing
$875 per month contribution (from savings) to their adult children’s college
education.8
Perhaps the most widely cited case of this genre is Paul, supra, 173
Cal.App.3d 913, which holds that a supported spouse’s expenditures on
college tuition and related costs may appropriately be considered as a factor
in establishing need for increased spousal support. (Id. at p. 921.) Citing
Epstein, supra, 24 Cal.3d 76, Paul noted, “In practice, courts have expressly
considered the fact that the supporting spouse is paying for the college
education of an adult child when determining that spouse’s ability to pay
spousal support to the supported spouse.” (Paul, at p. 919.) Applying the
predecessor to section 4320 (former Civil Code section 4801, subdivision (a)),
Paul noted that circumstances affecting spousal support include “ ‘practically
everything which has a legitimate bearing upon the present and prospective
7 The child, born in 1957, was a minor at the time of trial in July 1975,
but would be 18 within a few months thereafter. (Kelley, supra, 64
Cal.App.3d at p. 87.)
8 Presiding Justice Sills, who authored Serna, concurred in Meegan.
Serna, supra, 85 Cal.App.4th 482 does not discuss, or even mention Meegan.
9
matters relating to the lives of both parties.’ ” (Paul, at p. 919.)9 This may
appropriately include “making legitimate educational expenditures” that
“necessarily” impact support. (Id. at p. 921.)
More recent cases, most notably Serna, supra, 85 Cal.App.4th 482, take
a contrary approach. For Serna, the starting point is that “ ‘a court has no
authority to order a parent to support an adult child.’ ” (Id. at pp. 484, 491.)
Serna reasons that if income that otherwise would be paid toward spousal
support is instead spent on an adult child’s college expenses, then the
supported spouse is being compelled to indirectly pay adult child support:
“The central flaw in . . . Paul is that [it] allow[s] for the
naked circumvention of a decision that has already been
made by the Legislature—namely, that child support ends
at 19 at the latest, absent incapacity to earn a living. . . .
[Paul] [n]ever quite confronted the idea that it was
allowing something to be done indirectly what could not be
done directly.” (Serna, at p. 491.)10
9 In 1994, former Civil Code section 4801 was repealed and reenacted in
Family Code section 4320. (See In re Marriage of Christie (1994) 28
Cal.App.4th 849, 856‒857.)
10 See also In re Marriage of McElwee (1988) 197 Cal.App.3d 902, 911
[Because husband is under no legal obligation to support the adult children,
he cannot be ordered to do so indirectly by making support payments to wife
sufficient for her to provide housing for them]. David states that McElwee
was decided after Paul “by the same [d]istrict [c]ourt of [a]ppeal” and
“therefore controls by implication.” However, McElwee and Paul were
decided by different divisions of the Second Appellate District, so neither case
controls the other. (See Jessen v. Mentor Corp. (2008) 158 Cal.App.4th 1480,
1489, fn. 10 [“ ‘One district or division may refuse to follow a prior decision of
a different district or division, for the same reasons that influence the federal
Courts of Appeals of the various circuits to make independent decisions’ ”].)
10
We acknowledge, of course, that the trial court cannot require either
parent to pay for an adult child’s college education. But we disagree with
Serna’s analysis because Laurie is not asking that David be required to
support their adult children’s education, nor does the court’s order “bind
David to subsidize . . . able-bodied, adult child’s expenses” as he claims.
Laurie asks only that in setting spousal support under section 4320, her
choice to pay their children’s college expenses be evaluated for
reasonableness—in the same way the court would consider other expenses
affecting her ability to pay support. If Laurie chooses to spend her
discretionary income on their adult children’s education rather than on Maui
vacations,11 luxury automobiles, and expensive clothes—that is her
prerogative and a choice the court should respect and treat as it would any
other legitimate expense. College expenses for adult children are among the
circumstances to be considered in setting spousal support under subdivision
(e) of section 4320 (each party’s financial “obligations”), subdivision (k) (the
“balance of the hardships to each party”), and subdivision (n) (“[a]ny other
factors” that are “just and equitable”).
In sum, we agree with the trial court that “sending children to college is
at least as much of the marital standard of living as the marital home,
vacations, what cars they drive, how often they go out to eat, etc.” Moreover,
a support order based in part on the supporting spouse’s payment of
reasonable college expenses for adult children is not “indirect adult child
support” any more than considering vacation expenses or car payments would
compel indirect support of the Four Seasons hotel chain or Ford Motor
Company.
11 During the marriage, the couple spent $20,000 during a one-week Maui
vacation at the Four Seasons.
11
In evaluating a supporting spouse’s payment of adult children’s college
expenses under section 4320, the ultimate question is whether the amount is
reasonable under the circumstances. In making that determination, the
court should consider all relevant factors, including but not limited to:
(1) whether the supported spouse, if still living with the child, would have
contributed toward the educational costs; (2) the effect of the background,
values and goals of the parents on the reasonableness of the child’s
expectation of higher education; (3) the amount expended; (4) the supporting
spouse’s ability to pay that cost; (5) the parents’ respective financial
resources; (6) the commitment to and aptitude of the child for the education;
(7) the adult child’s financial resources; (8) the child’s ability to earn income
during the school year or on vacation; (9) the availability of financial aid
including reasonable amount of loans; and (10) the relationship of the
education to the adult child’s long-range career goals as affected by the family
circumstances and values during the marriage.
We also depart from Serna because it reads Epstein too narrowly.
Serna recognized that Epstein is “sometimes cited” for the “idea” that a court
may consider a supporting spouse’s payment of an adult child’s college
expenses “for purposes of lowering support.” (Serna, supra, 85 Cal.App.4th at
p. 488.) But Serna felt at liberty to hold otherwise on the grounds that
Epstein did not actually consider whether the supported spouse was, in effect,
being required to pay adult child support through lowered spousal support.
(Serna, at p. 488.) According to Serna, “In Epstein the court simply noted
that part of the supporting spouse’s monthly expenses was $350 applied
toward the couple’s daughter’s college education.” (Serna, at p. 488.)
We read Epstein differently. The Supreme Court held that the trial
court “did not abuse its discretion in limiting spousal support to $750 per
12
month” in light of the supporting spouse’s total monthly expenses, which
included $350 per month for the adult child’s college. (Epstein, supra, 24
Cal.3d at p. 89.) Implicit in that holding is the trial court applied the correct
legal standard. (See KB Home v. Superior Court (2003) 112 Cal.App.4th
1076, 1083 [in reviewing for abuse of discretion, the court “must determine at
the outset whether the [trial] court applied the correct legal standard to the
issue”].)
In any event, even if Serna correctly distinguished Epstein, we would
reach the same result in this case. “[T]he fact that the State of California
maintains so many institutions of higher learning at public expense”
demonstrates the public policy of this state is that a college education “should
be had, if possible, by all of its citizens.” (Hale v. Hale (1942) 55 Cal.App.2d
879, 882‒883.) Post-secondary education is indispensable for most highly
paid jobs. And as most parents surely know, even at state supported colleges
and universities, tuition, room and board is very expensive. Meanwhile, with
18 as the age of majority, it would be extremely rare for a child to complete
college before becoming an “adult.” Especially in families where parents
emphasized the importance of post-high school education, expected that they
would contribute financially to the children’s higher education, and had the
financial means to do so, it is both unrealistic and inequitable to preclude the
trial court from considering parental contributions to post-high school
educational expenses as a factor in determining the supporting spouse’s
ability to pay spousal support. Certainly there is nothing in the broad scope
of section 4320 that would compel the court to treat these expenditures
differently than it does any other discretionary expenses incurred by the
supporting spouse.
13
B. The Court Did Not Abuse Its Discretion in Imputing Income to David.
The court imputed $1,000 per month income to David until May 1,
2020, and thereafter imputed $3,000 per month. On appeal, David
challenges this ruling in two respects. First, he contends the court failed to
make a finding that David has an opportunity to work. Second, he contends
the evidence is insufficient to support such a finding because: (1) “[t]here was
no evidence presented to show any opportunity for David to gain
employment”; (2) Michlin’s opinion that David was unable to work was
“uncontroverted”; and (3) there was “no evidence of any vocational evaluation
supporting present or future imputation of income at any level.” David also
complains that the court erred in imputing income beyond retirement age.
As explained below, we reject each of these contentions.
1. The Court’s Finding that David Has Ability to Work is Supported by
Substantial Evidence.
The court may consider a party’s earning capacity as a factor in
determining spousal support. (§ 4320, subds. (a)(1), (g).) Earning capacity is
comprised of ability and opportunity to work. (In re Marriage of McHugh
(2014) 231 Cal.App.4th 1238, 1246.) “ ‘The “opportunity to work” exists when
there is substantial evidence of a reasonable “likelihood that a party could,
with reasonable effort, apply his or her education, skills and training to
produce income.” ’ ” (Ibid.)
Contrary to David’s contention, the court made the requisite findings to
impute income. The statement of decision recites, “The step-down [in spousal
support] reflects the court’s conclusion [David] can become fully employed if
he applies himself to overcoming his limitations.” Later, the statement of
decision adds, “[David] has the capacity to earn.”
This finding is supported by substantial evidence. At the time of trial
David was coaching youth track. Additionally, in 2018 he worked as a high
14
school track coach and track official. In March 2018, David sent an e-mail to
a public school inquiring about a coaching position. The medical evidence
also supports a finding that David has the ability to work. Michlin testified
that David is presently capable of working part time. And if David enjoyed
his work (e.g., coaching), Michlin believes he would make changes in his life
needed to work full time.12
Moreover, the trial court was entitled to, and did view with skepticism
David’s claimed inability to work. For example, David claimed that crowds
and noise trigger his PTSD and crippling anxiety. But David flew from a
presumably busy airport to Las Vegas, a town not known for monastic
solitude. He attended an indoor concert there, and on other occasions
frequented the county fair and attended a crowded nightclub—all with no ill
effects.
2. The Finding that David Has Opportunity to Work is Supported by
Substantial Evidence.
There is also substantial evidence that David has the opportunity to
work. In 2017 David passed the test necessary to work as a substitute public
school teacher. A vocational expert testified that an entry level teaching job
pays about $58,000 per year. There is a strong demand for math and science
teachers. David would be “highly competitive” for a teaching position because
he has experience working with high school students and holds a Ph.D. in
12 David contends the court’s determination that he “chooses” not to work
was intended to “punish” and “disparage[]” him. This is untrue. In stating
that David chose not to work, the court was referring to David’s nightly
alcohol intake and opioid use (which David concealed from Michlin). Laurie
testified that David began “drinking heavily” in 2012 and his substance
abuse worsened over time as he “started drinking and taking pills together.”
The court concluded that David “has the ability to address his emotional
problems and substance abuse, [but] he prefers not to.”
15
biochemistry. Although David would have to spend a year to obtain a
teaching credential, in the interim he could work as a substitute teacher
(earning about $125 per day), for which there is a current demand.
Moreover, David also has other part-time opportunities to tutor students in
math and science. These positions pay between $25 and $40 per hour.13 In
light of this evidence, we are at a loss to understand David’s claim that “there
was no evidence of any vocational evaluation supporting present or future
imputation of income at any level.” (Italics added.)
In asserting the evidence is insufficient to support these findings,
David points to Michlin’s report, which states he is incapable of performing
“any kind of meaningful employment requiring use of his intellect and
cognitive skills on a significant, long-term basis.” Stating that Michlin’s
opinions were “uncontroverted,” David contends the court “impermissibly
substituted its medical opinion for that of the [uncontroverted] expert who
testified without objection to David’s current and foreseeable inability to be
functionally employed.”
David’s argument here distorts the record. On cross-examination,
Michlin substantially retreated from some of the opinions in his written
report. For example, he testified (1) there was “significant hope” that David’s
conditions will improve; (2) a coaching job would be therapeutic; and
(3) returning to full time work would be “very good for him.” When
confronted with David’s alcohol consumption, Michlin ultimately conceded
that drinking a bottle of wine each night worsens sleep disorders. He also
13 This evidence also refutes David’s claim that there was “no evidence”
from which the court could impute “any amount of income” other than that of
a track coach.
16
opined that if David had “discipline” to go to bed on time, he could physically
work full time.
Moreover, the trial court was not bound by Michlin’s testimony.
Generally, the trier of fact may reject even uncontradicted expert testimony,
as long as it does not act arbitrarily. (Forman & Clark Corp. v. Fallon (1971)
3 Cal.3d 875, 890.) Given Michlin’s apparent bias (as David’s retained
expert) and the lack of any corroborating medical evidence (no other
physician testified and no medical records were offered into evidence), the
trial court could give Michlin’s testimony whatever weight it deemed
appropriate. Although Michlin entitled his report, “Independent Medical
Examination”—even David concedes that as his retained expert “it would be
expected that [Michlin] would advocate” for his position.
3. The Court Did Not Abuse Its Discretion by Imputing Income Beyond
Retirement Age.
The age of 65 is the customary retirement age. (In re Marriage of
McLain (2017) 7 Cal.App.5th 262, 269.) Trial courts cannot impute earning
capacity to an age-65 retiree based on his or her earnings when employed.
(Marriage of Reynolds (1998) 63 Cal.App.4th 1373, 1378 (Reynolds).) David
contends the court erred in imputing income without providing an end-date
because in five years he will reach retirement age.
Reynolds does not support David’s argument. There, a 66-year-old who
recently retired sought a reduction in his spousal support obligation. The
trial court only partially reduced support, effectively imputing income based
on his ability to work. The appellate court reversed because the order would
have required the retirement-aged spouse to continue working to pay the
same level of spousal support as when he was employed. (Reynolds, supra, 63
Cal.App.4th at p. 1378.) In contrast here, David is about five years from
retirement age. Upon reaching retirement age, David may move to modify
17
the order imputing income based on changed circumstances. (Id. at p. 1379.)
We express no opinion on the disposition of any such motion.
4. The Court Did Not Abuse Its Discretion in Stepping Down David’s
Support Over Time.
The court awarded David $4,000 per month in spousal support until
May 1, 2020. One year later support decreases to $3,500. Another year later,
to $2,500. The court explained:
“The step-down reflects the court’s conclusion [David] can
become fully employed if he applies himself to overcoming
his limitations. He has one year to make a little progress,
one more year for moderate progress, and a third year for
substantial progress.”
David concedes that “a step-down spousal support order is certainly
within the court’s discretion.” However, he contends that for the same
reasons the court abused its discretion in imputing income, there is also
insufficient evidence to support a finding that David would have a reduced
need for support.
A step-down order informs “each spouse that the supported spouse has
a specified period of time to become self-supporting, after which the
obligation of the supporting spouse will cease. . . . However, if things do not
work out as contemplated, the supported spouse can, upon a showing of good
cause, request a change in the original order as to amount or as to the term
for jurisdiction over the issue of spousal support. [The order] 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 Prietsch & Calhoun (1987) 190 Cal.App.3d 645, 665–666.)
18
“ ‘[O]rders for changes in support to take effect in the future must be
based upon reasonable inferences to be drawn from the evidence, not mere
hopes or speculative expectations.’ ” (In re Marriage of Smith (1978) 79
Cal.App.3d 725, 740.) “The critical inquiry. . . is whether the step-down
provision, standing alone, is supportable given the parties’ circumstances at
the time the order was made.” (In re Marriage of Cheriton (2001) 92
Cal.App.4th 269, 311.)
Substantial evidence supports the finding that David can realistically
be self-supporting (or nearly so) when support diminishes. (See In re
Marriage of West (2007) 152 Cal.App.4th 240, 248.) The vocational
rehabilitation expert testified that in a six- to nine-month period David could
reasonably be expected to complete substance abuse treatment concurrently
with vocational planning. David could obtain a teaching credential within
one year by attending month-to-month university classes with rapid start
dates. Additionally, Michlin testified there were “incredible medications”
that have “revolutionized the treatment of anxiety and depression.” He
explained, “I have taken people that are completely non-functioning, because
of their anxiety, depression, and have made them productive individuals.”
Michlin recommended that David take medication that would reduce or
eliminate his desire to consume alcohol. Michlin has “significant hope” that
David’s conditions will improve, stating, “I don’t want him to think that this
is his life for the rest of his life.”
C. The Court Did Not Abuse Its Discretion in Characterizing the Marital
Standard of Living.
1. Additional Background
In ordering spousal support a court must consider the “extent to which
the earning capacity of each party is sufficient to maintain the standard of
living established during the marriage . . . .” (§ 4320, subd. (a).) The marital
19
standard of living is a general description of the “station in life” the parties
maintained at the date of separation; it is not a “mathematical standard.”
(In re Marriage of Smith (1990) 225 Cal.App.3d 469, 491 (Smith).) “While
‘the marital standard of living is an important factor in determining spousal
support, it is not the only factor, and its importance in determining whether
it is “just and reasonable” (§ 4330) to award spousal support will vary based
on the court's evaluation of the section 4320 factors.’ [Citation.] After
considering the marital standard of living along with the other statutory
factors, ‘the court may “fix spousal support at an amount greater than, equal
to or less than what the supported spouse may require to maintain the
marital standard of living, in order to achieve a just and reasonable result
under the facts and circumstances of the case.” ’ ” (Grimes & Mou, supra, 45
Cal.App.5th at pp. 424–425.)
In this case, the evidence establishing the marital standard of living
pulled in two very different directions. On the one hand, the couple lived in a
$1.8 million, 4,500 square foot home, took expensive vacations, and spent
about $8,000 per month on credit cards which they monthly paid in full.
They amassed a 420 bottle wine collection. Together they drank two bottles
of wine every night.
But beginning in 2005, the family home became in Laurie’s words, a
“hovel” and “squalid.” They lived on bare cement floor after a flood ruined
hardwood flooring and bedroom carpet. Laurie testified that “it really
became bad once [David] started shopping obsessively online and just piling
things up all over the house.” According to Laurie, in addition to leaking
toilets and no flooring, three of four showers were not functioning, the pool
was a “swamp,” and the home needed $70,000 in repairs to make it livable
before it could be sold.
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After separation, David moved to a 1,200 square foot apartment that he
rents for $2,800 per month. The garbage disposal, microwave, shower, and
refrigerator are inoperable. David has not asked the landlord to repair the
appliances because he continues to live in squalor and is embarrassed to have
anyone inside his apartment.
Laurie now lives in a substantially smaller home. Her mortgage,
property tax, insurance, and related expenses are about $2,000 less per
month than like expenses for the couple’s marital home.
2. The Court’s Ruling
The court’s statement of decision specifically addressed the marital
standard of living:
“It is difficult to put a word to the parties’ marital standard
of living—appalling comes close. They lived in a filthy
refuse strewn home with each evening dedicated to
drinking a bottle of wine each. ([Laurie] testified [David]
would not allow her to clean the house while he was home,
and he seldom left.) The court rarely casts marital
standard of living in terms of spendable income; it is
particularly inappropriate here . . . .” [¶] . . . [¶]
“The court is not confined to choosing upper, middle or
lower, none of which describe the parties’ living conditions.
At [date of separation], [David] was living in a squalid
house strewn with garbage, refuse, discarded items left to
sit where they dropped and rooms filled with empty
cardboard boxes from his online shopping . . . . He has
maintained that same standard of living.” [¶] . . . [¶]
“None of [David’s] evidence supported his claim he needed
over $15,000/month to meet the marital standard of living.
Given the condition of his apartment . . . and the condition
of the parties’ home at [date of separation], he is presently
maintaining nearly the marital standard of living by living
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in squalor, drinking a bottle of wine each day and eating
fast food.”14
3. The Court Did Not Abuse Its Discretion in Considering the Marital
Standard of Living.
Citing Smith, supra, 225 Cal.App.3d 469, David contends the court
erred by not describing the marital standard of living in financial terms:
“ ‘upper, middle, or lower income.’ ” He also faults the court for not
acknowledging that the marital home sold for almost $2.2 million. David
argues that the court’s characterization of their standard of living was
“a moral condemnation of their living conditions, not an impartial evaluation
of their ‘general station in life’ based on their financial conditions as of the
date of separation.”
Smith does not support David’s contentions. First and foremost, the
marital standard of living is just one of many circumstances courts consider
in determining spousal support. (Smith, supra, 225 Cal.App.3d at p. 484.)
Marital standard of living is a “general description” and not a “mathematical
standard.” (Id. at p. 491.) David is correct that in Smith, the court found
“marital standard of living” may perhaps be best understood in its ordinary
sense, i.e., upper, middle or lower income. (Id. at p. 491.) But that is not the
exclusive manner of describing a couple’s station in life. Rather, as Smith
notes, “The factual and equitable circumstances of each case are unique.”
(Id. at p. 494) Indeed, with some prescience, Smith gave as an example:
“family income was high, but the parties lived at a depressed standard of
living because one spouse was a . . . substance abuser.” (Id. at p. 489.) In the
14 The court referred to certain photographic exhibits to support its
description of the marital home and David’s apartment. The parties have not
transmitted those exhibits on appeal.
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unique circumstances here, the trial court did not abuse its discretion in
characterizing the marital standard of living.
D. David has Waived Issues Involving Unpaid Maher Law Debts.
For purchases made before the date of separation, Maher Law had
incurred credit card debts: (1) Capital One: $6,552; (2) Bank of America:
$12,929; (3) Bank of America (second credit card): $11,217; (4) American
Express: $10,728; and (5) Citibank: $2,981.
These accounts were paid in full from $58,835 in loans against a
community property brokerage account. At the time of trial, the outstanding
loan balance was approximately $22,000.
The court ruled that Maher Law expenses David paid after the date of
separation are community expenses and “[a]ny debts of Maher Law coming
due after trial are the sole responsibility of [David], irrespective of when
those debts accrued.”
David’s appellate counsel states he “frankly does not know what the
court intended by this finding and order but speculates that the court
intended this community property [brokerage] account to be divided equally
as of the date of trial with David taking the outstanding loan that he had
used to pay off the credit card accounts” and there is “great ambiguity in the
court’s order dividing that account and the loan against that account.”
Nevertheless, he contends “[r]egardless of the intent of the trial court in
making this division . . . it is error on its face” because sections 2550 and
2622 require those debts to be divided equally.15
15 Section 2550 provides in part: “Except upon the written agreement of
the parties, or on oral stipulation of the parties in open court, or as otherwise
provided in this division, in a proceeding for dissolution of marriage . . . the
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There is a remedy for orders that are so ambiguous experienced counsel
“frankly does not know what the court intended”—and it’s not reversal on
appeal. The appropriate remedy is a timely objection on that ground in the
trial court. (Code Civ. Proc., § 634.)
David’s trial counsel filed a 20-page objection to the proposed statement
of decision. But those objections did not address any claimed ambiguity
except with respect to the attorneys’ fees award, not challenged here. Indeed,
counsel made no objections at all regarding the ruling on Maher Law debts.
Trial counsel’s failure to call the claimed ambiguity to the trial court’s
attention does not appear to be an oversight. As Laurie points out, the court
denied her request for reimbursement for half the value of the stock David
sold to pay Maher Law debt. The court also did not grant Laurie’s request for
half of the remaining stock and dividends from the brokerage account. Thus,
Laurie concludes that the court granted David the entire value of the
brokerage account, which well exceeds the $44,407 in credit card debt he paid
with the loan. Since David did not contest these points in a reply brief, we
assume they are accurate. A windfall might explain why David’s trial
counsel did not raise the issue. In any event, by failing to object and ask the
trial court to clarify the alleged ambiguities in the statement of decision
regarding Maher Law debt, David has waived this issue on appeal. (In re
Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.)
parties, the court shall . . . divide the community estate of the parties
equally.”
Section 2622 provides in part: “[D]ebts incurred by either spouse after
the date of marriage but before the date of separation shall be divided as set
forth in Sections 2550 to 2552, inclusive, and Sections 2601 to 2604,
inclusive.”
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DISPOSITION
The judgment is affirmed. Respondent is entitled to costs on appeal.
DATO, J.
WE CONCUR:
AARON, Acting P. J.
IRION, J.
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