**UNPUBLISHED**

Husband and wife had been married for thirty years. Wife filed for divorce when she was 54; husband was 56 and was a physician employed full time by UCLA. Husband received additional income from speaking engagements, writings and honoraria. Wife filed an order to show cause (OSC) for spousal support. At issue were husband's consultation fees for treatment of a Saudi Arabian head of state, who husband travelled to see once a year.

Wife was a registered nurse and had an MS and PhD in nursing and child development. She worked as a head nurse and research coordinator at UCLA and had been on the faculty of the UCLA School of Nursing. After her children were born, she focused on raising the family and worked only part-time for the past twenty years. She is currently unemployed.

Wife claims that husband makes $266,000 per year for his house calls to Saudi Arabia. Husband claims that the house calls are sporadic and are now limited to a maximum of $140,000 per year. Further, the patient will soon die, and the visits will cease.

The family trial court found that husband's income approximated $54,000 per month; no income was imputed to wife. The court ordered husband to pay $21,000 in spousal support. After the patient died in Saudia Arabia, husband filed an OSC to modify spousal support. The court found that husband's monthly income had been reduced to $35,000 and set alimony at $12,000 per month.

Wife appeals, contending that husband failed to meet his burden to show that his lost income could not be replaced. She also argued that court should wait 12 months before determining whether husband can replace his income.

Court of appeals upheld lower court decision. Family Code, section 3600 allows for temporary alimony during a divorce. The support is intended to maintain the living conditions as close to the status quo as possible. The trial court has broad discretion in making the award, subject only to wife's needs and husband's ability to pay. Here, the majority of wife's contentions relate to an award of permanent alimony. The lower court rightly relied on husband's present ability to pay and wife's present needs.

Case: Verzemnieks v. Cummings
Court: Superior Court of Los Angeles County
Judge: Richard E. Denner
NOT CITEABLE

Labels: alimony, modification, spousal support

In this unpublished opinion from the Fourth District California Court of Appeal, the court discusses income for support orders imputed from earning capacity and a subsequent spouse.

Husband and wife divorced in 2003 and had two young children. At the time, husband was a BMW car salesman and earned around $6000 per month. Wife had a home-based salon and earned $400 per month. Husband was ordered to pay $1200 in child support and $900 in spousal support (alimony) per month. Wife was awarded the family residence and paid the husband an equalizing payment of half the value of the then-value of the house.

In early 2005, husband got remarried and moved with the new wife to Italy for her job with the military. The new wife had 3 children of her own.

In May 2005, the trial court held a hearing on husband's order to show cause (OSC) for modification of the support orders. Wife failed to serve husband with an income and expense declaration prior to the hearing; her attorney presented it to the court on the day of the hearing in addition to two recent pay stubs. As husband was appearing telephonically from Italy, he was not able to examine the evidence.

Husband stated that he was looking for work in Italy but was still unemployed. The trial judge imputed to husband his new wife's monthly income of $5,800. As the guideline amounts did not change substantially from the prior amounts, the court refused to modify the support orders.

In November 2005, husband filed a motion to modify the support, set aside the May order and correct the arrears award made by the court at the May hearing. Husband argued that wife had failed to disclose that she had made a profit on the sale of the family home. He also filed an updated income and expense declaration that showed a part-time job making $900 per month. His new wife's income had increased to $9000 per month, but family expenses ran upwards of $8,500 per month.

Husband argued that since he never received proper service of wife's evidence, the arrears order should be vacated. The lower court found that although the arrears award exceed the amount wife had requested in her OSC application, it should not be vacated but rather reduced to the requested amount. California Code of Civil Procedure, section 473(d) allows for setting aside a void judgment or order. The court found that the judge had jurisdiction to make the order, therefore it was never void. The Appellate court agreed, finding that husband received notice of the proceeding and was given an opportunity to be heard. However, the court also found that it may have been improper (erroneous) for the court to rely on an income and expense declaration and pay stubs that husband had not seen. However, the method for correcting an erroneous order is to move for reconsideration or to appeal it.

In regard to the support orders, the lower court found that wife now made $2,340 per month. The court also imputed California minimum wage to husband of $1,170, as well as one-half of his new wife's income. The court reduced the child support to $1000 per month. In upholding the imputation of the minimum wage, the Appellate court declares that a court can depart from the guideline only in special circumstances set forth in the statutes. The court found no abuse of discretion in considering husband's earning capacity in lieu of his income (Family Code, section 4058(b). ) Pursuant to Marriage of Regnery, earning capacity is measured by 1.) ability to work; 2.) willingness to work; and 3.) opportunity to work. Section 4058 expressly authorizes the court to attribute income, without regard why the income has been reduced. The Appellate court found that husband's move to Italy does not alter the fact that he has a continuing obligation to his children and that he could presumably find full-time, rather than part-time, employment.

The Appellate Court did find, however, that the trial court erred in considering half of the new wife's salary in the guideline calculation. California Family Code, section 4057.5 expressly prohibits courts from considering a subsequent spouse or partner's income except in an extraordinary case where excluding it would lead to extreme and severe hardship to the child subject to the award, in which the case the court must also consider whether it would lead to extreme and severe hardship to any other supported child. As wife did not produce a current income and expense declaration from which the court could determine severe and extreme hardship, there was insufficient evidence to determine whether excluding the subsequent wife's income would cause the children to suffer extreme and severe hardship as wife received a significant gain on the sale of the family residence and was earning less than what she was capable of.

Case: Marriage of Gaffney
Court: San Diego County Superior Court
Judge: Lantz Lewis
UNPUBLISHED

Labels: alimony, child support, Family Code 4058, imputed income, spousal support, subsequent spouse

A recent decision by the California Court of Appeal, First District, overturned a Sonoma County trial court ruling which had reduced, and then tapered, the amount spousal support a wife had been receiving since the parties' divorce. The wife had initially declared that she would become a school teacher but instead became a real estate agent. In reducing, then ending, the spousal support amount, the trial court relied on the length of the marriage, her favorable earnings outlook, and the fact that she had received significant community property assets that she had failed to save.

However, the Appellate Court found this marriage of twenty (20) years was of "long duration" pursuant to Family Code, section 4336 and, thus, is not subject to the Family Code, section 4320(l) goal that a supported spouse become self-supporting within a reasonable time (generally, one-half the length of the marriage).

The Court also found her earnings outlook to be less than what the trial court had determined it to be.

Finally, the Court found the wife's lack of savings from her community property share should not be imputed against her as she was not asking for a support payment above the amount of support she received while she was also receiving community property payments.

However, the Court rejected the wife's assertion that there had been no material change in circumstances that would warrant a review of support as the wife's decision to abandon her stated career choice and take a different path, a path which enabled her to find employment and earn money, was a material change.

Case: Marriage of West
Court: Sonoma
Trial Judge: Bertoli

Labels: alimony, change of circumstances, divorce, spousal support