IN RE: Marriage of CATHLEEN and DONALD ROBERT FORSTER.

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Court of Appeal, Second District, California.

IN RE: Marriage of CATHLEEN and DONALD ROBERT FORSTER. CATHLEEN FORSTER, Respondent, v. DONALD ROBERT FORSTER, Appellant.

B220921

Decided: January 19, 2011

Larson Law Group and Charles L. Larson for Appellant. Law Offices of Nate G. Kraut and Nate G. Kraut for Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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This appeal follows the denial of appellant Donald Forster's request for a modification of his spousal support obligations.   We affirm.

FACTS

Donald and Cathleen Forster were married for 18 years and divorced in January 2002.1  They have three adult children.   Donald has a high school diploma and is employed selling used cars.   Cathleen also has a high school education and is employed as a part-time clerk.   At the time the parties divorced, Donald was required to pay $1,200 in spousal support “until the party receiving support remarries, dies or further order of the Court.”

On May 29, 2009, Donald sought a modification of the spousal support order.   He argued that the economy severely impacted his business and his ability to pay spousal support.   Cathleen opposed Donald's requested modification, questioning Donald's statements that he was unable to pay and claiming that it was very difficult for her to find work, especially because she had a hearing impairment.

At a hearing, without objection, the court stated that it could “take judicial notice used cars are still doing very well.”   The court found no change of circumstance and denied Donald's requested modification.   The court stated that it had considered all the evidence and concluded that Donald had the ability to pay and Cathleen had a need for support.2  The court did not provide a statement of decision.

DISCUSSION

Family Code section 4320 governs the criteria in making a spousal support order and any modification to such order.3  (In re Marriage of Stephenson (1995) 39 Cal.App.4th 71, 77.)   In making a spousal support order, the trial court is required to apply each relevant section 4320 factor.   (In re Marriage of Geraci (2006) 144 Cal.App.4th 1278, 1297;  In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 304.)  “Modification of spousal support, even if the prior amount is established by agreement, requires a material change of circumstances since the last order.  [Citations.]  Change of circumstances means a reduction or increase in the supporting spouse's ability to pay and/or an increase or decrease in the supported spouse's needs.   [Citations.]”  (In re Marriage of McCann (1996) 41 Cal.App.4th 978, 982-983.)

On appeal, Donald argues the trial court had “the obligation to reevaluate all of the relevant spousal support factors once a showing of some change [in circumstance was] made.”   He also argues that the court erred in taking judicial notice that the used car industry continued to do well.   For reasons we explain, we conclude his arguments lack merit.

Donald's claim that the court erred in failing to evaluate all relevant section 4320 factors is inconsistent with the general principal of appellate practice that we presume that a judgment or order of a lower court is correct.  “ ‘All intendments and presumptions are indulged to support [the judgment] on matters as to which the record is silent, and error must be affirmatively shown.’ ”  (Denham v. Superior Court (1970) 2 Cal.3d 557, 564;  see also In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.)   Donald's emphasis on his change in income neither shows the court failed to consider the relevant factors nor that the court erred in denying Donald's requested modification.  (In re Marriage of Stephenson, supra, 39 Cal.App.4th at p. 78 [change in actual income is not necessarily sufficient to modify the spousal support order because the trial court is required to consider the reasonable needs and financial abilities of the parties].)   Although Donald argued he lacked the ability to pay, the court was not required to credit Donald's argument.   The court made express findings on his ability to pay and stated that it had considered all of the evidence.   In short, based on our record on appeal, Donald fails to affirmatively show the court failed to consider the relevant factors.4

Donald's remaining argument that the court erred in taking judicial notice that the used car industry continued to do well despite the economic downturn was forfeited.  (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2, superseded by statute on other grounds as stated in In re S.J. (2008) 167 Cal.App.4th 953, 962.)   Because he failed to object in the trial court, this court will not consider his challenge to the trial court's ruling.  (In re S.B., at p. 1293.)   In any event, Donald acknowledges this “error might be harmless” and ascribes no prejudice to the court's finding.   Therefore, assuming the objection had been preserved and assuming the court erred in taking judicial notice, reversal is not warranted.  (Evid.Code, § 353, subd. (b) [decision shall not be reversed unless the errors complained of resulted in a miscarriage of justice].)

DISPOSITION

The superior court's order dated September 25, 2009, denying Donald's requested modification is affirmed.   Cathleen shall have her costs on appeal.

We concur:

FOOTNOTES

FN1. Because the parties have the same surname, we refer to them by their first names.   We intend no disrespect by the use of their first names..  FN1. Because the parties have the same surname, we refer to them by their first names.   We intend no disrespect by the use of their first names.

FN2. Cathleen correctly points out that Donald initially did not include the trial court's order in the record on appeal.   Donald, however, subsequently supplemented the clerk's transcript to include the order..  FN2. Cathleen correctly points out that Donald initially did not include the trial court's order in the record on appeal.   Donald, however, subsequently supplemented the clerk's transcript to include the order.

FN3. Undesignated statutory citations are to the Family Code, unless otherwise stated.Section 4320 provides:  “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.“(b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.“(c) The ability of the supporting party to pay spousal support, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living.“(d) The needs of each party based on the standard of living established during the marriage.“(e) The obligations and assets, including the separate property, of each party.“(f) The duration of the marriage.“(g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.“(h) The age and health of the parties.“(i) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.“(j) The immediate and specific tax consequences to each party.“(k) The balance of the hardships to each party.“(l) The goal that the supported party shall be self-supporting within a reasonable period of time.   Except in the case of a marriage of long duration as described in Section 4336, a ‘reasonable period of time’ for purposes of this section generally shall be one-half the length of the marriage.   However, nothing in this section is intended to limit the court's discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.“(m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4325.“(n) Any other factors the court determines are just and equitable.”   (Italics added.)The italicized factors are those relied upon by Donald in his trial court brief..  FN3. Undesignated statutory citations are to the Family Code, unless otherwise stated.Section 4320 provides:  “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.“(b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.“(c) The ability of the supporting party to pay spousal support, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living.“(d) The needs of each party based on the standard of living established during the marriage.“(e) The obligations and assets, including the separate property, of each party.“(f) The duration of the marriage.“(g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.“(h) The age and health of the parties.“(i) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.“(j) The immediate and specific tax consequences to each party.“(k) The balance of the hardships to each party.“(l) The goal that the supported party shall be self-supporting within a reasonable period of time.   Except in the case of a marriage of long duration as described in Section 4336, a ‘reasonable period of time’ for purposes of this section generally shall be one-half the length of the marriage.   However, nothing in this section is intended to limit the court's discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.“(m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4325.“(n) Any other factors the court determines are just and equitable.”   (Italics added.)The italicized factors are those relied upon by Donald in his trial court brief.

FN4. In his reply brief, Donald argues that the record lacks sufficient evidence to support the court's finding of no change in circumstance.   Arguments raised for the first time in a reply brief without a showing of good cause are forfeited.  (Garcia v. McCutchen (1997) 16 Cal.4th 469, 482, fn. 10;  Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.)   When the appellant challenges the sufficiency of the evidence, “the reviewing court must start with the presumption that the record contains evidence sufficient to support the judgment;  it is the appellant's burden to demonstrate otherwise.  [Citation.]  The appellant's brief must set forth all of the material evidence bearing on the issue, not merely the evidence favorable to the appellant, and it also must show how the evidence does not sustain the challenged finding.”  (Baxter Healthcare Corp. v. Denton (2004) 120 Cal.App.4th 333, 368.)   Even if Donald had preserved his argument, applying the appropriate standard of review, we would conclude that the record contains substantial evidence to support the trial court's order as the trial court was not required to credit Donald's testimony.At oral argument, Donald argued for the first time that a statement of decision was required under either section 3654 or section 4332.   This argument is forfeited because Donald did not timely raise it.  (Padilla v. Rodas (2008) 160 Cal.App.4th 742, 753, fn. 2.) Even if it were preserved, neither statute applies here.   Section 3654 applies only when the court modifies, terminates, or sets aside a support order, none of which occurred in this case.   Section 4332 applies in a proceeding for dissolution of marriage or for legal separation, circumstances not involved in the present case..  FN4. In his reply brief, Donald argues that the record lacks sufficient evidence to support the court's finding of no change in circumstance.   Arguments raised for the first time in a reply brief without a showing of good cause are forfeited.  (Garcia v. McCutchen (1997) 16 Cal.4th 469, 482, fn. 10;  Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.)   When the appellant challenges the sufficiency of the evidence, “the reviewing court must start with the presumption that the record contains evidence sufficient to support the judgment;  it is the appellant's burden to demonstrate otherwise.  [Citation.]  The appellant's brief must set forth all of the material evidence bearing on the issue, not merely the evidence favorable to the appellant, and it also must show how the evidence does not sustain the challenged finding.”  (Baxter Healthcare Corp. v. Denton (2004) 120 Cal.App.4th 333, 368.)   Even if Donald had preserved his argument, applying the appropriate standard of review, we would conclude that the record contains substantial evidence to support the trial court's order as the trial court was not required to credit Donald's testimony.At oral argument, Donald argued for the first time that a statement of decision was required under either section 3654 or section 4332.   This argument is forfeited because Donald did not timely raise it.  (Padilla v. Rodas (2008) 160 Cal.App.4th 742, 753, fn. 2.) Even if it were preserved, neither statute applies here.   Section 3654 applies only when the court modifies, terminates, or sets aside a support order, none of which occurred in this case.   Section 4332 applies in a proceeding for dissolution of marriage or for legal separation, circumstances not involved in the present case.

BIGELOW, P. J. RUBIN, J.