|
“How much time can elapse before is becomes was?” . . .
In reversal, Fourth District holds that ex-spouse must file request to modify spousal support per Fam C §4326 within reasonable time after child-support order terminates
In re Marriage of Kacik
(November 19, 2009) |
California Court of Appeal, 4 Civil G041274 (Div 3), 179 Cal.App.4th 410, 101 Cal.Rptr.3d 745, 2009 FA 1417, per Sills, PJ (Rylaarsdam and Moore, JJ, concurring). Orange County: Pollard, J, reversed and remanded with directions. For appellant: Lisa Brandon, CFLS, (562) 901-9800. For respondent: No appearance. CFLP §F.97.65.5. |
Laurie and Richard Kacik had a June 1983 wedding; their only child, Alexander, was born in August 1988. The couple separated in May 1999 and began divorce proceedings. On June 8, 2001, the trial court entered their stipulated disso judgment, which, among other things, required Richard to pay $1,125 in monthly child support until Alexander turned 18. It also ordered him to pay $1,625 in monthly spousal support until February 15, 2008, when the payments would be reduced to zero, with the court retaining jurisdiction over the issue “ ‘until death, remarriage or further order of the court.’ ” The judgment also stated that Laurie (then 46) was unemployed but had the ability to earn $1,000 in gross monthly income; Richard’s monthly gross was pegged at $11,336. Alexander turned 18 in August 2006, triggering the termination of child support.
On February 15, 2008, Laurie filed an OSC, asking the court to increase her spousal support to $2,000 a month. In a supporting declaration, Laurie stated that she worked full time for $15 an hour and was unable to find a job that paid more; that if the support order was reduced to zero she would have to sell her house and leave Orange County; that she needed continuing support to meet her basic needs; and that the child-support order had terminated in August 2006. In his responsive declaration, Richard claimed that, based on the disso judgment, he was footing the bills for Alexander’s college education; his I&E declaration showed monthly income of $13,907. After a continuance was granted, Richard’s counsel requested production of documents showing what efforts Laurie had made to become self-supporting. When she responded that there were no documents, Richard’s attorney filed a supplemental declaration, claiming that Laurie “had not really done anything to become self-supporting.”
The hearing took place on July 24, 2008, with the attorneys submitting on the papers filed. The court found that the marital standard of living was $5,668, based on half of Richard’s monthly income at the time of the disso judgment, but the $1,625 in monthly spousal support ordered in the judgment did not meet the MSOL. Richard’s attorney then raised the question of changed circumstances, arguing that there hadn’t been a preliminary finding regarding such a change. The court found that a change of circumstances had occurred when Alexander left home for college (while noting that this had happened almost two years before). In addition, the court determined that Laurie’s monthly gross of $2,580, which exceeded the $1,000 a month attributed to her in the disso judgment, “represented a ‘sufficient effort’ ” to become self-supporting.” Relying on Fam C §4326 [termination of child support constitutes change of circumstances in spousal-support proceeding if T/CT has jurisdiction over spousal support and child-support order is still in effect], the court ordered Richard to continue paying $1,625 a month, retroactive to February 15, 2008. These findings and orders were formalized in a written order on October 9, 2008.
Richard appealed, and the Fourth District reversed and remanded.
In the background . . .
The justices explained that Fam C §4326 was enacted in response to In re Marriage of Lautsbaugh (1999) 72 Cal.App.4th 1131, 85 Cal.Rptr.2d 688, 1999 CFLR 8237, 1999 FA 905, in which the Second District ruled that a child’s graduation from high school did not constitute a material change of circumstances that supported a spousal-support mod because it was an event that was anticipated in the original order. The panel noted that the author of that section’s enacting legislation sought to abrogate that ruling, reasoning that, in many cases, the high payments mandated by the child-support guidelines leave obligors without enough money to pay spousal support that is appropriate to the recipient’s needs. Lautsbaugh left such recipients with insufficient orders and no means for seeking an increase, a situation that the enactment of §4326 was intended to remedy. (The justices noted that the bill’s author, in order to allow the Legislature to review the impact of §4326, agreed to include a provision that it would sunset on January 1, 2011, unless extended.)
Parsing the prose . . .
The panel then turned to the actual wording of Fam C §4326: “ ‘In a proceeding in which a spousal support order exists or in which the court has retained jurisdiction over a spousal support order, if a companion child support order is in effect, the termination of child support pursuant to subdivision (a) of Section 3901 constitutes a change of circumstances that may be the basis for a request for modification of spousal support.’ ” The justices reasoned that the statute contains the following two conditions: There must be a proceeding that involves an existing spousal-support order (or the court has retained jurisdiction over the issue), and a companion child-support order must be in effect. If those conditions are met, the panel continued, and child support terminates under §3901(a) [child support continues until specified terminating event], that termination represents a change of circumstances. The question here was what the Legislature meant by “ ‘a companion child support order is in effect.’ ” Unfortunately, the justices noted, the legislative history of §4326 and the facts in Lautsbaugh failed to provide an answer, since neither deals with the effect of filing a mod request after a child-support order has terminated. Thus, in this case of first impression, the justices had to determine how long after such an order terminates a mod may be requested.
Not strictly applicable . . .
The panel looked for guidance at Fam C §3601(a), which provides that a child-support order continues in effect until it terminates by court order or operation of law under Fam C §§3900, 3901, 4007, and 4013. The justices were reluctant to apply §3601 to these facts because it would mean that mod requests must be filed before a child-support order terminates; such an interpretation would be contrary to the legislative intent of permitting spouses to seek a mod when they are left with inadequate spousal-support orders after child support ends. Moreover, the panel continued, it would prevent trial courts from considering evidence of the effect of that termination on the recipient-spouse’s financial situation, such as whether the recipient-spouse needs less income or has an increased earning capacity after a child leaves home, which would be crucial factors in deciding whether to grant or deny a modification. Therefore, the justices concluded, it would not be appropriate to apply §3601 on these facts.
Time after time . . .
Their rejection of a stringent reading of “is in effect” did not mean that the justices had decided against imposing a time restriction for making a mod request after a child-support order terminates. Instead, they thought that giving spousal-support recipients a reasonable time in which to file their mod requests was more in keeping with the purpose of the statute. Therefore, they held that a mod request under §4326 need not be made before the child-support order terminates, but it must be made within a reasonable time thereafter. Applying that rule here, the panel concluded that the 17 months between termination of the child-support order and Laurie’s mod request was simply too long. Moreover, it appeared that the request was linked more closely to the looming stepdown order than it was to the termination of child-support. Accordingly, the justices reversed the mod order and remanded, with directions to the trial court to enter a new order denying the mod. They noted, however, that Laurie is not precluded from filing another OSC for a spousal-support increase based on other changed circumstances. They also advised the Legislature to consider clarifying the language of §4326 with regard to the time period for making a request if it decides to renew the statute.
Cases of first impression are always valuable additions to the body of family law. The reasoning of these justices may at times edge into the “have result, need reasoning” category, but it is mostly logical. We can understand why the panel declines to apply the strict standard of Fam C §3601. As the justices explain, valuable evidence regarding the needs of the supported spouse after the child leaves home or when the spouse is able to be more fully employed will not be available for a time after the child-support order ceases. And while we might prefer a less-vague standard than “a reasonable time,” the justices do give us some guidance when they say that the time should be sufficient to allow “some ‘post-termination’ data to be collected” (it just can’t drag on ad nauseum, ad infinitum). They call their newly announced standard “a rule of reasonable contemporaneousness,” which, although a bit wordy, is about as good as anything.
Note that Laurie’s mod request fails not just because she waited so long to file it, but also because it seems more closely tied to the stepdown provision in the existing spousal-support order than to the cessation of child support. Attorneys seeking to oppose a mod request under §4326 should not limit themselves to calculating the time period between when the child-support order ends and when the request is made; as is evident here, other circumstances may allow us to argue that §4326 should not apply, even where the time period isn’t too long. The justices note that the statute was not intended to abrogate the part of Lautsbaugh that discussed whether a spousal-support mod could be denied on the ground that it was based on circumstances that were accounted for in the prior order; thus, there was no change of circumstances. Splitting a very fine hair, the panel says that the Legislature intended to remedy the situation where the child-support order crowded out the spousal-support order, which then did not truly account for the future cessation of the child-support order. Therefore, we are free to argue that a modification should not be granted because a prior order did, in fact, account for the future conditions. It’s also worth noting that the opinion doesn’t deal with the question of whether Laurie actually made sufficient efforts to become self-supporting, which was raised by Richard’s attorney. The trial court reasoned that the fact that Laurie earned more than the earning capacity attributed to her meant that she’d made sufficient efforts. We’d like to have seen that finding discussed more fully, but apparently that will have to wait for another day and another opinion. In the meantime, keep this one in your files for future reference.
|
|
