Filed 10/18/19 Marriage of Britt CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In re the Marriage of JIL BRITT and DOUG BRITT. H042734

(Santa Clara County

Super. Ct. No. FL147798)

JIL BRITT,

Appellant,

v.

DOUG BRITT,

Respondent.

Appellant Jil Britt challenges an order reducing spousal support and finding that there were no child or spousal support arrearages. She contends that the court erred in reducing spousal support because, among other things, it should not have found that she had the capacity to earn $5,000 a month in wages and $5,000 a month in investment income, neither of which she had ever earned in the past. She also claims that the trial court erred in finding that respondent Doug Britt had not incurred child support arrearages when, without obtaining a court order modifying child support, he ceased paying child support for each older child when that child graduated from high school. In addition, Jil argues that the court erred in failing to enter a new child support order for the youngest child. We find no abuse of discretion in connection with the child support issues, but we find that the court abused its discretion with respect to spousal support because there was no evidence to support the court’s earning capacity findings. Accordingly, we reverse the court’s order.

I. Background

Doug and Jil were married for more than 20 years and had three children together. During their marriage, Jil was “a full time mother and homemaker.” When the couple separated in 2008, all three of their children were minors, and Doug immediately began paying child and spousal support.

In July 2009, the parties stipulated to an order requiring Doug to pay base spousal support of $8,186 per month and base monthly child support of $7,453 for the three children. A “DissoMaster” printout attached to the order showed separate child support amounts for each child, with the largest amount attributed to “Child 3,” the youngest child The $7,453 figure was broken down to $1,491 for “Child 1,” the eldest child, $2,236 for “Child 2,” the middle child, and $3,727 for Child 3. Child 3 received 50 percent of the total, while Child 2 received 30 percent, and Child 1 received 20 percent. The 2009 order also required Doug to pay additional child and spousal support (referred to as Ostler/Smith payments ) when he had “bonus” income above his base salary. An attached chart set forth the applicable percentages of bonus income that he was required to pay, which were approximately 13 percent for additional child support and 28 percent for additional spousal support.

In 2010, the court entered a judgment that incorporated the provisions of the July 2009 order regarding spousal support and child support. The 2010 judgment provided: “The current amount of child support of $7,453 and the spousal support of $8,186 shall remain in effect until further order of court. It shall be subject to the conditions of the Stipulation of July 15, 2009 attached hereto.” By incorporating the July 2009 stipulated order, the 2010 judgment continued the Ostler/Smith provisions requiring Doug to pay “additional spousal support” and “additional child support” if he had “additional income.” The judgment also required Jil to pursue a “program of business administration concentrating in accounting” leading to an AA degree no later than November 2011 and provided for review of her spousal support at that time. The judgment provided that support was “modifiable retroactively . . . .” The parties stipulated as part of the judgment that Jil’s “Marital Standard of Living” (MSOL) would be “set at $13,100 per month after tax.”

Child 1 graduated from high school in June 2010. After that, Doug ceased paying the base child support and the Ostler/Smith amount associated with Child 1. Doug testified that he “was always under the impression . . . that when the kids are 18, they emancipate.” He adjusted the Ostler/Smith amount by utilizing the same percentages that applied to the base child support (50%/30%/20%).

Jil obtained an AA degree in “medical billing” in January 2012 and obtained full-time employment “[r]ight away.” In October 2012, her hours were cut to 30 hours a week.

Child 2 graduated from high school in June 2013. After that, Doug paid child support for only Child 3, which included both the base amount and the Ostler/Smith amount associated with Child 3. Jil and Doug shared custody of Child 3, with Doug having a 20 percent timeshare under the 2010 judgment.

In March 2013, Doug filed a request for modification of spousal and child support, termination of spousal support, and termination of the Ostler/Smith additional spousal support provision. The only change Doug sought to child support was a recognition that he was required to pay only amounts associated with Child 3 after Child 2 graduated from high school in June 2013. He pointed out that he was paying all of the college expenses for Child 1 and would do so for all three of the children. Doug’s request for a modification of spousal support was based on the fact that Jil had completed her “accountancy course” but “is still not self supporting.” He asked the court to “set a step down and termination date for ongoing spousal support to $7,000 per month commencing immediately and $5,000 per month in the next year and a reduction to zero when [Child 3] emancipates.” Doug sought immediate termination of the Ostler/Smith additional spousal support provisions.

Doug’s accompanying income and expense declaration stated that his gross monthly income was $41,666 and his monthly expenses were $21,875. After filing his motion, Doug continued paying the base spousal support amount but stopped sending Ostler/Smith additional spousal support payments to Jil; instead he placed those payments in a segregated bank account in case the court rejected his request to end those payments. Doug continued to pay child support and the Ostler/Smith additional child support payments for the children who had not yet graduated from high school.

Jil responded to Doug’s motion by asking the court to “determine and set child and spousal support arrears, [and] support payments unpaid under the existing Ostler/Smith orders.” She also asked the court to award her attorney’s fees and costs. Jil complained that Doug had “unilaterally lowered child support” to $5,961 in June 2010 after Child 1 graduated from high school even though the child support order stated that it would “remain in effect until further order of the court.” Jil asked the court to award “guideline [child] support.” She claimed that Doug had not complied with the existing Ostler/Smith provisions. Jil opposed Doug’s request for a reduction in spousal support and requested that the court “increase it to the MSOL . . . .” Jil’s April 2013 income and expense declaration asserted that her monthly gross wages were $2,851 and her monthly expenses were $14,045. She reported $1.5 million in liquid assets.

In a March 2014 income and expense declaration, Doug asserted that Jil received $6,219 a month in wages and investment income. He reported monthly expenses of $25,999. His September 2014 income and expense declaration reported a small increase in his base pay to $43,750 a month and additional income that averaged more than $50,000 a month. His monthly expenses had dropped to $18,017. Jil was laid off from her job in October 2014.

The case was tried in January 2015. Jil asserted at trial that “there’s not a substantial change of circumstances warranting a modification at all.” She claimed that she had “wisely invested her share of community property to produce income,” “retrained” and gotten a job, and “controlled her spending,” but she “will never be self supporting.” She asked the court to modify child support “based on” Doug’s request. Jil claimed that Doug owed child support arrears because the judgment did not allow him to unilaterally reduce child support based on an “unincorporated Dissomaster breakdown” of the amounts attributable to each child.

Doug produced evidence that Jil’s “investment income” was $3,357 per month in 2013, and her total income in 2013, including both investment income and income from employment, was $74,633. Doug’s expert had analyzed Jil’s claimed expenses and found them to be greatly overestimated. He concluded that her actual monthly expenses were $7,560. The expert calculated that Jil could meet those expenses with her wages from part-time work, her investment income, and approximately $3,830 in monthly spousal support.

Jil’s position was that her investment income was just under $1,000 a month. She claimed that her monthly expenses were $18,078. Jil testified that her average monthly expenses in 2013 were $23,558.87, and her expenses were similar throughout the period from 2010 to 2014. She claimed that she had needed to “invade” her “principal assets” in order to meet her monthly expenses. Jil testified that she was currently cohabiting with an unemployed man who did not contribute to household expenses except to pay for his food and for his children’s food when his children were there living with them, which was half of the time. She claimed that the presence of this man and his children did not increase her expenses. Jil insisted that she actually spent $3,500 a month on food and $3,000 a month on car expenses, just for herself. Jil’s mortgage payment was $1,800 a month for her $1.5 million home, and she had no other debts.

The court issued a statement of decision in which it credited Doug’s evidence and discredited Jil’s evidence. The court concluded that there were no child support arrearages. In its view, Doug had properly stopped paying child support for each older child when those children graduated from high school because the judgment’s “appendix” “clearly specifies the amounts and discretely raises the amounts for the younger children.” The court concluded that the child support order did not “trump” or “obviate[] what is the law of this state regarding child support,” which did not ordinarily obligate a parent to support a child after the child graduated from high school. With regard to spousal support, the court found that Jil had the capacity to earn $10,000 a month in income from wages and investments. It reduced spousal support to $5,000 a month effective on the date of Doug’s March 2013 motion and terminated Doug’s obligation to pay additional Ostler/Smith spousal support effective at the time of Doug’s motion. Jil timely filed a notice of appeal from the court’s order.

II. Discussion

A. Child Support

Jil raises two issues on appeal concerning child support. She contends that the trial court erred in ratifying Doug’s cessation of child support payments for Child 1 and Child 2 upon their graduations from high school. Jil also asserts that the trial court erred in failing to calculate a new child support amount for Child 3.

1. Cessation of Child Support for Child 1 and Child 2

Jil claims that Doug was in arrears for child support because he was not permitted to cease paying child support for Child 1 and Child 2 upon their graduations from high school. Her position is that the 2010 judgment required Doug to bring a motion to modify child support and obtain a new child support order each time a child graduated from high school.

Jil acknowledges that her contention requires us to interpret the 2010 judgment. “We examine a dispute concerning the legal effect of [a] judgment utilizing the following standards of review: ‘The meaning and effect of a judgment is determined according to the rules governing the interpretation of writings generally. [Citations.] “ ‘[T]he entire document is to be taken by its four corners and construed as a whole to effectuate the obvious intention.’ ” [Citations.] “ ‘No particular part or clause in the judgment is to be seized upon and given the power to destroy the remainder if such effect can be avoided.’ ” [Citations.] [¶] Where an ambiguity exists, the court may examine the entire record to determine the judgment’s scope and effect. [Citations.] The court may also “ ‘refer to the circumstances surrounding the making of the order or judgment, [and] to the condition of the cause in which it was entered.’ ” ’ ” (In re Marriage of Richardson (2002) 102 Cal.App.4th 941, 948-949 (Richardson).)

The 2010 judgment provided that “Child support is ordered as set forth in the attached” stipulation. The attached stipulation stated that the $7,453 child support amount was “subject to the conditions of” the July 2009 order and “shall remain in effect until further order of court.” The July 2009 order set the total child support amount at $7,453 and stated that the “amounts of support are guideline calculations as set forth in [the attached DissoMaster printout].” The DissoMaster printout identified a separate amount of “guideline” child support for each child. Because the incorporated printout set the child support for each child, the judgment’s incorporation of this printout meant that the judgment ordered a separate amount of child support for each child.

Jil isolates the language stating that the child support “shall remain in effect until further order of court” and insists that this meant that Doug was required to pay the total amount of child support for all three children, even if they graduated from high school, unless he obtained a “further order of court.” Her interpretation of the 2010 judgment ignores the fact that we must construe the judgment “ ‘ “ ‘as a whole to effectuate the obvious intention’ ” ’ ” and that “ ‘ “ ‘[n]o particular part or clause in the judgment is to be seized upon and given the power to destroy the remainder if such effect can be avoided.’ ” ’ ” (Richardson, supra, 102 Cal.App.4th at pp. 948-949.) We must “examine the entire record” and consider all of the surrounding circumstances in determining the meaning of the judgment. (Ibid.)

We decline Jil’s invitation to focus solely on the isolated “shall remain in effect” language in the judgment. That language was immediately followed by “shall be subject to the conditions of the Stipulation of July 15, 2009 attached hereto.” The 2009 stipulation, by incorporating the DissoMaster printout, set forth an individual amount of child support for each child. We also must construe the judgment in conjunction with the statutory basis for the child support award it contained. Family Code section 3901 provides: “The duty of support imposed by Section 3900 continues as to an unmarried child who has attained 18 years of age, is a full-time high school student, . . . and who is not self-supporting, until the time the child completes the 12th grade or attains 19 years of age, whichever occurs first. [¶] . . . This section does not limit a parent’s ability to agree to provide additional support or the court’s power to inquire whether an agreement to provide additional support has been made.” (Fam. Code, § 3901.) It is also a relevant consideration that Jil apparently understood the 2010 judgment the same way that Doug did at the time because she did not challenge his 2010 elimination of child support for Child 1 when she graduated from high school.

Neither the 2010 judgment nor the 2009 order contained anything suggesting that Doug had agreed to provide child support for any child after that child graduated from high school. By incorporating the DissoMaster printout, the July 2009 stipulation set forth different amounts for each child and explicitly provided that the parties to the stipulation were agreeing to “guideline amounts.” If Doug had been agreeing to pay a specific amount of child support regardless of whether all of the children were still subject to the provisions of Family Code section 3901, there would have been no need for a separate amount for each child nor would it make sense to refer to those amounts as “guideline amounts,” since the “guidelines” do not require child support beyond the dictates of Family Code section 3901. We interpret the 2010 judgment, as the trial court did, to require Doug to pay the separate “guideline” amount specified in the July 2009 stipulation for each child only for so long as that child remained subject to Family Code section 3901. The trial court did not err in finding that Doug’s elimination of child support for Child 1 and Child 2 after they graduated from high school was not a violation of the 2010 judgment.

2. No New Child Support Order

Jil claims that the trial court erred in failing to modify the existing child support order and calculate a new child support amount for Child 3. She notes that her responsive pleading requested “guideline support,” Doug’s motion mentioned child support, and Doug acknowledged at trial that “ongoing support” was at issue.

Doug’s motion did not seek any modification of child custody or visitation. While his motion had boxes checked for seeking a modification of child support, he sought only an acknowledgement that he was not required to pay child support for a child who had graduated from high school. Jil’s motion did not seek any modification of child custody, visitation, or support but only a determination of arrears and an award of attorney’s fees. Jil claimed at trial that the 20 percent timeshare upon which the judgment’s child support was based was invalid because Child 3 was actually spending 100 percent of his time with Jil. When Jil objected to the court’s statement of decision, she claimed that the court should have made income and timeshare “findings” and a ruling “on setting support” for the two children who were still minors when Doug filed his motion.

We reject Jil’s claim that the trial court was required to enter a new child support order in response to the motions that were before it. Neither motion challenged the 20 percent timeshare or sought a modification of child custody or visitation. A timeshare is a custody or visitation issue. The simple fact that Child 3 no longer actually spent 20 percent of his time with Doug did not obligate the court to modify a custody and visitation order that neither party had placed at issue. With no motion to modify the visitation order before it, the trial court did not err in failing to modify the timeshare and leaving the child support order incorporated into the 2010 judgment intact as to Child 3.

B. Spousal Support

1. Change of Circumstance

Jil claims that Doug failed to show that there had been a change of circumstance that justified a reduction of spousal support. Her claim lacks merit. At the time of the 2010 judgment, Jil had three minor children at home, was unemployed, and had not worked in nearly 20 years. The 2010 judgment required Jil to obtain an AA degree within 18 months and explicitly provided for a review of spousal support at that time. When Doug filed his motion in March 2013, three years had passed, Jil had obtained an AA degree, and she was soon to have only one minor child at home. She had obtained employment from which she had income, and she was also reaping some income from her investments. All of these changes of circumstance were relevant to Jil’s ability to provide for at least some of her own support, which could justify a reduction in spousal support. Doug did not fail to show a change of circumstance.

2. Jil’s Earning Capacity From Wages and Investments

Jil challenges the court’s findings that attributed earning capacity to her of $5,000 a month in wages and $5,000 a month in investment income. She claims that there was no evidence to support these figures.

“ ‘An award of spousal support is a determination to be made by the trial court in each case before it, based upon the facts and equities of that case, after weighing each of the circumstances and applicable statutory guidelines. [Citation.] 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.” ’ ” (In re Marriage of McLain (2017) 7 Cal.App.5th 262, 269

“In ordering spousal support under this part, the court shall consider all of the following circumstances: [¶] (a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following: [¶] (1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment. [¶] (2) The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties. [¶] . . . [¶] (l) The goal that the supported party shall be self-supporting within a reasonable period of time.” (Fam. Code, § 4320.)

The trial court was required to consider Jil’s “earning capacity” in determining whether to reduce spousal support in response to Doug’s motion. The trial court found that, if Jil “taps the interest on the [$1.5 million] Morgan Stanley account, the court finds that at a rate of 4% return, she could generate $5000 per month.” It also found that Jil had the capacity to earn “$5000 per month in income” from wages. It premised this finding on Jil’s “fail[ure] to pursue education/employment in a manner the court believes is reasonable . . . [and her capability] of earning this amount in an accounting job . . . .”

Jil argues that the trial court abused its discretion in finding that as of March 2013 she had the capacity to earn $5,000 a month in wages and $5,000 a month in investment income. She maintains that there was no evidence presented at trial that could support these figures, and the court “picked these figures out of thin air.” Jil’s argument has merit.

While the trial court could have reasonably found that Jil had the capacity to earn wages despite her unemployed state at the time of trial, the record does not contain any support for the $5,000 a month figure selected by the court. A vocational assessment, which was not in evidence, had determined that Jil should pursue an AA degree in accounting. Instead of doing so, Jil pursued an AA degree in medical billing without making any effort to learn that this field had limited job prospects and low pay. After she obtained a job in medical billing that paid poorly, she did not seek a job that paid better or seek to develop additional skills even after her hours were cut from full time to part time. Jil’s actions as a whole showed that she was not committed to becoming even partially self-sufficient.

Nevertheless, while the trial court could have reasonably concluded that Jil had the capacity to work full time at the $19 an hour wage that she had been earning at her medical billing job and that she should seek to improve her skills so that she could earn better pay in the future, there was no evidence that she had the capacity as of March 2013, when Doug filed his motion, to obtain full-time work at $30 an hour (which is the approximate equivalent of $5,000 a month). Certainly the court could have concluded that she had the capacity to earn $19 an hour for full-time work, but that would amount to less than $3,500 a month. No other evidence of Jil’s earning capacity appears in the record before us. Consequently, the trial court abused its discretion in finding that Jil had the capacity to earn $5,000 a month in wages.

The same is true with regard to the court’s determination that she had the capacity to earn $5,000 a month in investment income from her $1.5 million investment account. There was no evidence that Jil had ever earned that amount from her account, and no evidence was presented at trial that her account, which appeared to be her retirement funds, could reliably produce such earnings. Doug’s expert testified that Jil had earned $3,557 per month on her investments in 2013, and there was no evidence that she had ever earned more on her investments. Jil testified that she was earning less than $1,000 a month from her investment account at the time of the 2015 trial. While this record could support a finding that Jil had the capacity to earn the $3,557 per month that she had earned from that account in 2013, the court had no basis for its finding that she could earn $5,000 a month (or four percent a year) on the account. Without evidence, the court’s finding was based on nothing more than speculation. It follows that the court abused its discretion in finding that Jil had the capacity to earn $5,000 a month from her investment account to contribute to her support.

Because these findings were critical to the court’s assessment of the Family Code section 4320 factors in making its decision to reduce Jil’s spousal support, reversal is required, and we need not address the remainder of Jil’s contentions.

III. Disposition

The trial court’s order is reversed, and the matter is remanded with directions to vacate the portion of the order modifying spousal support and to reconsider that issue. Jil shall recover her appellate costs.

 

_______________________________

Mihara, J.

WE CONCUR:

_____________________________

Elia, Acting P. J.

_____________________________

Bamattre-Manoukian, J.

Britt v. Britt

H042734