Filed 8/27/20 Marriage of Williamson CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

In re the Marriage of BRIAN H. and NANCY E. WILLIAMSON. B294699

BRIAN H. WILLIAMSON,

Appellant,

v.

NANCY E. WILLIAMSON,

Respondent.

(Los Angeles County

Super. Ct. No. ED032124)

APPEAL from an order of the Superior Court of Los Angeles County, Theresa M. Traber, Judge. Affirmed.

Holstein, Taylor and Unitt, Brian C. Unitt; Howington & Associates and Joseph W. Howington for Appellant.

Law Offices of Kenneth M. Stern and Kenneth M. Stern for Respondent.

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Brian H. Williamson appeals from an order denying his request to terminate his spousal support obligation owed to his former wife, Nancy E. Williamson. Brian contends the trial court failed to consider his retirement as a material change in circumstances and misapplied the factors set forth in Family Code section 4320 that govern spousal support awards. For the reasons stated below, we affirm the order.

BACKGROUND

The parties dissolved their marriage in February 2004 and entered into a stipulated judgment requiring Brian to pay Nancy $1,500 in monthly spousal support until the death of either party, Nancy’s remarriage, or until further order of the court. The judgment contained a notice provision that each party would make a reasonable good faith effort to become self-supporting, and that failure to do so may provide a basis to modify or terminate spousal support. Nancy received the marital home while Brian was awarded his retirement benefits that he earned as a firefighter.

Brian retired in 2011, and in August 2016 he requested an order terminating his support obligation. He argued that his retirement constituted a material change in circumstances and that he would have to pay support directly from his retirement benefits.

After an evidentiary hearing, the trial court rendered its first statement of decision in January 2018. It rejected Brian’s argument that his retirement constituted a material change in circumstances that justified a modification to the spousal support award because Brian’s postretirement income was significantly higher than it was at dissolution.

Nevertheless, the trial court found a material change in circumstances justifying a modification to the award because Nancy’s needs changed substantially since the entry of judgment. At the time of judgment, Nancy earned $450 per month from a part-time job with the prospect of achieving full-time and minimum-wage employment. However, when Brian requested a modification to the award, Nancy was plagued by medical problems that severely limited her ability to work.

After finding the prerequisite material change in circumstances, the trial court considered the mandatory factors under section 4320 to determine whether to award spousal support. It found that Brian’s and Nancy’s individual earning capacities and their ability to maintain the marital standard of living justified raising the award. Nancy did not work during the parties’ 23-year marriage. She had a high school education and had developed few job skills or experience during her adulthood. After the dissolution, Nancy worked part-time for minimum wage. She transitioned to full-time by 2007. As a result of Nancy’s health, however, she had not worked since April 2016 and had exhausted her disability benefits. The trial court rejected Brian’s argument that Nancy should have obtained further training and education to enhance her earning capacity because he failed to submit evidence of any training or educational opportunities that Nancy should have pursued. Nor did Brian refute Nancy’s claim that she was unable to work and required surgery to stabilize her medical condition. Thus, the parties’ earning capacity weighed in favor of increasing support.

The trial court found that Brian’s ability to pay also weighed in favor of increasing the spousal support award. His income and expense declaration stated that he was grossing $10,285 per month from his retirement benefits, which would be reduced to $9,386 per month in February 2018. However, he failed to fully disclose his expenses and inflated his needs by omitting his new spouse’s contributions to his monthly expenses. The trial court suspected that Brian was either taking in more monthly than what was stated on his declaration or he grossly underestimated his new wife’s income. Lacking full disclosure, the trial court found that Brian’s retirement income in 2017 was $10,285 per month and that his new wife had a monthly income of at least $4,631. It found that Brian’s net spendable income was enough to pay his monthly expenses as well as spousal support to Nancy. In contrast, since Nancy had been unemployed since April 2016 and had exhausted her disability benefits, she had no income.

The trial court then assessed the needs of the parties based on the standard of living established during the marriage, which they stipulated was comfortably middle class. At the time of dissolution, the parties’ income was approximately $8,450 per month. Thus, given Brian’s $10,285 in monthly income and Nancy’s total lack thereof, the trial court found that this factor “tilt[ed] decidedly in favor of an increase in support.”

The trial court also considered the notice provision in the judgment that each spouse was to make a good faith effort to become self-supporting within a reasonable period of time. The trial court concluded that the notice did not preclude increasing the award because, despite her limited education and work experience, Nancy made “a valiant effort to become self-supporting by securing full-time employment at a rate just above minimum wage.” “There is no evidence that [Nancy] was underemployed or that she disregarded any educational or employment opportunities that were available to her. Her medical issues and resulting disability intervened to prevent her from continuing to work and have blocked her ability to become self-supporting.”

The trial court lastly considered the balance of hardships and any other factor it determined to be just and equitable. These factors also justified an increase in support. “[Nancy] is 61 years old, physically disabled, and unemployed and has no means of support other than spousal support.” The trial court noted that, while Nancy did have some funds set aside for retirement, she would be unable to access them before she reached the age of 65 unless she incurred a significant penalty. At the same time, Brian had his health, a good pension, regular financial support of his current wife, two homes, and a lifestyle above the marital standard of living. Moreover, while Nancy was without income and struggling to pay her bills, Brian unilaterally reduced his spousal support payment to $1,000 per month without a court order. Brian’s actions left Nancy in dire straits by drastically reducing her income when she was at her most impoverished.

In its first statement of decision, the trial court determined that the amount of permanent spousal support should be increased from $1,500 to $1,850 per month thereafter. Brian objected, contending the trial court improperly considered his new spouse’s income when it increased the amount of spousal support. The trial court overruled the objection and found that it was entitled to consider Brian’s new spouse’s income, especially, in light of the fact that Brian failed to fully disclose his expenses by arbitrarily assigning some expenses to his new wife.

Brian then moved for a new trial based on new evidence that Nancy had returned to full-time work as a shuttle driver and was earning $12.15 per hour. The motion was granted. Brian then reiterated his argument that his retirement constituted a material change in circumstances, but the trial court reaffirmed its rejection of such. The trial court did acknowledge, however, that Nancy’s return to full-time employment was a material change in circumstances that warranted reevaluating its prior spousal support award. The trial court also noted that Brian had provided some of the financial information that he had previously withheld, and that Nancy was currently working up to her earning capacity. After considering this new evidence, the trial court reduced the spousal support award from $1,850 back to $1,500 per month.

Again, Brian objected to the trial court’s consideration of his new spouse’s income as a factor. This time, however, the trial court sustained the objection, finding that under In re Marriage of Romero (2002) 99 Cal.App.4th 1436, it could not consider Brian’s new spouse’s income, either directly or indirectly when making its spousal support determination. Brian’s new spouse’s income notwithstanding, the trial court concluded that his remaining income exceeded the $1,500 per month and concluded that $1,400 per month in spousal support was appropriate. Brian appealed.

DISCUSSION

The trial court has broad discretion to award spousal support according to the needs of the parties and their respective abilities to meet those needs. (In re Marriage of Meegan (1992) 11 Cal.App.4th 156, 161.) So long as the court exercised its discretion along legal lines, its decision will not be reversed on appeal if there is substantial evidence to support it. (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 480.) “Reversal requires a clear showing of abuse of discretion.” (Ibid.) Brian cannot meet this daunting standard.

Brian argues the trial court abused its discretion by failing to consider his retirement as a change in circumstances justifying a termination of spousal support. To justify a modification or termination of spousal support, there must be a material change of circumstances. (In re Marriage of Khera & Sameer (2012) 206 Cal.App.4th 1467, 1475.) This means a change in the supporting spouse’s ability to pay or in the supported spouse’s needs. (In re Marriage of Shimkus (2016) 244 Cal.App.4th 1262, 1272–1273.)

Brian’s contention that the trial court failed to consider his retirement as a change in circumstances is not supported by the statements of decision. The trial court considered Brian’s argument, but rejected it by finding Brian’s retirement did not result in a reduction in his ability to pay spousal support. Brian’s income after retirement was actually higher than when he was married and still working. There is no per se rule that a spouse’s retirement always justifies a reduction or termination of spousal support. Rather, it is a circumstance that the trial court may consider because retirement usually results in less income. (In re Marriage of Reynolds (1998) 63 Cal.App.4th 1373, 1379.)

Brian cites In re Marriage of Reynolds, supra, 63 Cal.App.4th 1373 to argue that his retirement benefits should be shielded as a source of payment of spousal support because they represent his residual share of the community property awarded to him as part of the dissolution. The portion of Reynolds cited by Brian is dicta and the facts are readily distinguishable. In Reynolds, the spousal support award exceeded the husband’s net income from any source and forced him to invade or exhaust his retirement assets. (Id. at p. 1380.) That is not the case here. After comparing Brian’s income and expenses, the trial court concluded that his monthly income was more than enough to meet his needs and to pay spousal support to Nancy. The trial court did not fail to consider Brian’s retirement as a change in circumstances, and we find no abuse of discretion.

Brian’s last contention is that the trial court failed to properly weigh the factors set forth in section 4320. The trial court has broad discretion to order spousal support; however, in doing so, it must consider the statutory factors in section 4320. (In re Marriage of Smith, supra, 225 Cal.App.3d at pp. 479–480.) But so long as the statutory factors are considered and weighed, the amount and duration of the spousal support award rests within the trial court’s broad discretion. (Ibid.)

Here, there is no question that the trial court considered each of the relevant section 4320 factors. Brian argues that the trial court failed to consider Nancy’s obligation to become self-supporting pursuant to the marriage settlement agreement, the length of time between the dissolution and Brian’s request to terminate spousal support, and Brian’s separate income as opposed to his combined income with his new spouse. Brian’s positions are not supported by the record. The trial court did consider Nancy’s obligation to become self-sufficient and made specific findings regarding her work history, education, and health that all hindered her ability to maintain the marital standard of living and to become self-supporting. These findings mitigated the fact that there was a significant passage of time between the parties’ dissolution and Brian’s request to terminate support. The trial court’s final statement of decision makes clear that it expressly excluded from its consideration Brian’s new spouse’s income. Brian’s contentions are merely a disagreement with the trial court’s findings. None of which gave rise to abuse of discretion.

DISPOSITION

The order is affirmed. Nancy E. Williamson is awarded her costs on appeal.

NOT TO BE PUBLISHED.

DHANIDINA, J.

We concur:

LAVIN, Acting P. J. EGERTON, J.