IN RE: the Marriage of CHERRYL and DANIEL JENKINS.  CHERRYL JENKINS

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Court of Appeal, Fifth District, California.

IN RE: the Marriage of CHERRYL and DANIEL JENKINS.  CHERRYL JENKINS, Respondent, v. DANIEL JENKINS, Appellant.

F061397

Decided: January 20, 2012

Wild, Carter & Tipton, Richard A. Harris and David A. Yengoyan for Appellant.   Judith Leslie Soley, Inc., and Leslie A. Soley;  McCormick, Barstow, Sheppard, Wayte & Carruth and Todd W. Baxter for Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

Appellant Daniel Jenkins and respondent Cherryl Jenkins 1 dissolved their 21–year marriage in 1994.   Daniel was ordered to pay spousal support of $2,000 per month, which he has paid.   In 2009, Daniel sought a reduction of the spousal support obligation to $500 per month and a termination of support after three years.   The family court reduced monthly spousal support to $1,656, did not set a fixed termination date, and ordered Daniel to pay $15,175.78 in attorney fees to Cherryl.   Daniel appeals, contending the family court abused its discretion in not setting a termination date for support, not imputing more income to Cherryl, thus reducing spousal support further, and ordering him to pay Cherryl's attorney fees.   We will affirm the order.

FACTUAL AND PROCEDURAL SUMMARY

Daniel and Cherryl were married on June 2, 1973.   A judgment of dissolution was entered on December 23, 1994, dissolving the marriage of 21 years.   The judgment included a spousal support provision.   At the time of the dissolution, Daniel was 40 years old and owned two businesses, Jenkins Concrete Pumping and Danco Distributing, both of which he inherited from his father.   During their marriage, Cherryl worked at Jenkins Concrete but was never paid a salary.

Daniel and Cherryl have two children.   In addition to working for the family business, Cherryl took care of their children.   During the marriage, Cherryl received a new car every two years and the family lived in a 4,000–square–foot home that cost $585,000 to build.

At the time the parties filed for dissolution of their marriage, Daniel was receiving a salary of $150,000 per year.   Cherryl had an income of about $900 per month, with expenses of $7,329 per month.

The judgment of dissolution provided that Daniel was to pay spousal support of $2,000 per month to Cherryl until Cherryl's remarriage, further order of the court, or the death of either party.   There was no provision in the judgment that required Cherryl to become fully self-supporting.

On July 6, 2009, Daniel filed an order to show cause (OSC) seeking a modification of his spousal support obligation to Cherryl and requesting a vocational evaluation of Cherryl.   He also filed an updated income and expense declaration, which stated that he averaged $10,000 per month in salary, $2,672 per month in dividends, and $2,962 per month in additional income.   His assets included $716,000 in cash, $1,335,054 in stocks and bonds, and $750,000 in rental property.   His expenses were over $17,000 per month, including an $8,104 monthly payment on a home in Pismo.

Cherryl's responsive pleadings included an updated income and expense declaration, which listed an average monthly income of $929 from working as a nanny and $2,000 in spousal support.   She listed assets of $24,000 in cash, $284,000 in stocks and bonds, and $200,000 worth of real and personal property.   Her monthly expenses were approximately $3,000.

The family court ordered that the vocational evaluation be done.   Cherryl had a high school diploma, but had not attended college.   Following her divorce, Cherryl tried a number of different jobs, finally settling on a job as a nanny.   Cherryl believed a nanny's position was an excellent fit for her.

The hearing on the OSC was held on May 7 and 12, 2010.   Daniel acknowledged that he had been remarried for five years and that his current wife, Michelle, paid some of the expenses listed on his expense report.   Michelle worked at Jenkins Concrete and was compensated for her work, with her earnings deposited into a separate account that was not reflected in Daniel's assets.

During the five years prior to the hearing, Daniel periodically called Cherryl to talk about reducing his spousal support payments.   He also sent letters in 2002 and 2004 seeking a reduction or termination of spousal support.   Cherryl declined, stating she needed the support.   Daniel testified that support should not be “never-ending,” but that Cherryl would not agree to a reduction of spousal support or a termination date for support.   Daniel did not claim he had an inability to pay support of $2,000 per month.

Steven Koobatian, Ph.D., performed the vocational evaluation of Cherryl.   Koobatian testified that Cherryl's vocational options included continuing as a nanny, where she was earning $10 per hour.   He also felt Cherryl could obtain work in an office, at approximately the same pay as a nanny, based upon her work experience at Jenkins Concrete.   Koobatian opined that Cherryl was capable of earning $20,000 to $21,000 per year.

Koobatian acknowledged that Cherryl's health issues, which included arthritis in her hands and feet and tendonitis in both elbows, could affect her ability to work in an office.   If Cherryl were to receive training for office work in a medical field, she might increase her earnings by about $4,000 per year, but the training would cost anywhere from $3,000 to $26,000.

At the time of the hearing, Cherryl was working three days a week, for a total of approximately 31 hours as a nanny, for which she was paid $10 per hour.   She also helped care for her grandson two days a week because her daughter could not afford child care.   Cherryl was not paid for caring for her grandson.

At the conclusion of the presentation of evidence, Daniel argued that spousal support should be changed to $500 per month.   He argued that Cherryl's failure to pursue a higher paying full-time job constituted changed circumstances.   The family court ordered posttrial briefing.

In Daniel's posttrial brief, he again argued spousal support should be reduced to $500.   He also requested the family court deny Cherryl's request for attorney fees.   Cherryl filed her posttrial brief, and Daniel filed a reply brief asking that Cherryl receive a warning pursuant to In re Marriage of Gavron (1988) 203 Cal.App.3d 705, 711–712 (Gavron ) that spousal support would terminate in three years.   Cherryl filed a sur reply brief.

On July 15, 2010, the family court filed its memorandum of decision and order.   The family court set forth its findings, including (1) the parties had an enhanced standard of living during their marriage;  (2) Cherryl's earning capacity was not sufficient to maintain that standard of living;  (3) Daniel's ability to pay spousal support was the same or greater than at the time of dissolution of the marriage;  (4) the needs of the parties had not changed significantly since the dissolution;  (5) Cherryl's obligations had remained consistent since the dissolution, while her assets had declined;  and (6) Daniel's obligations had increased, but his assets had increased as well.

The family court further found Daniel would not suffer any hardship by maintaining the current level of support and also that Cherryl's employer was seeking to employ her for additional hours each week.   In addition, the family court concluded that the Family Code section 4320, subdivision (l ) 2 presumption of a termination date for support did not apply because the marriage was long term.   The family court, however, noted that the goal was for Cherryl to become self-supporting within a reasonable period of time.

The family court concluded that there was a change in circumstances in that Cherryl had an increased opportunity to become self-supporting by working additional hours as a nanny.   It found that Cherryl was working approximately 32 hours per week, was capable of working an additional eight hours per week, and adjusted spousal support downward.   The family court calculated the additional earnings at $80 per week, for a monthly reduction of $344 ($80 x 4.3).   The family court indicated Cherryl had to be given fair notice of the expectation to become self-sufficient and set January 1, 2011, as the date the reduction in support would become effective.

DISCUSSION

Daniel contends the family court erred by failing to impute more income to Cherryl, thus failing to reduce spousal support to a lower level, and fixing a termination date.   He also challenges the award of attorney fees.

I. Standard of Review

“[W]hether a spousal support order should be modified is a matter within the sound discretion of the trial court, predicated upon a showing of a material change of circumstances since the last spousal support order.  [Citations.]”  (In re Marriage of Stephenson (1995) 39 Cal.App.4th 71, 76–77.)   Generally speaking, a “[c]hange 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.”  (In re Marriage of McCann (1996) 41 Cal.App.4th 978, 982, citing, e.g., In re Marriage of Hoffmeister (1984) 161 Cal.App.3d 1163, 1173.)  “The moving party bears the burden of establishing a material change of circumstances since the last order was made in order to obtain modification of the spousal support order.  [Citations.]  In determining whether a change of circumstances has occurred, the trial court is required to reconsider the same standards and criteria set forth in ․ Family Code section 4320 it considered in making the initial long-term order at the time of judgment and any subsequent modification order.  [Citation.]”  (Stephenson, at pp. 77–78, fn. omitted.)

“Whether a modification of a spousal support order is warranted depends upon the facts and circumstances of each case, and its propriety rests in the sound discretion of the trial court[,] the exercise of which this court will not disturb unless as a matter of law an abuse of discretion is shown.   [Citations.]”  (In re Marriage of Hoffmeister (1987) 191 Cal.App.3d 351, 357–358.)   Appellate review of such an order is governed by the deferential abuse of discretion standard.  (In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 197.)  “ ‘An abuse of discretion occurs when, after calm and careful reflection upon the entire matter, it can fairly be said that no judge would reasonably make the same order under the same circumstances.   [Citation.]’  [Citation.]”  (In re Marriage of Reynolds (1998) 63 Cal.App.4th 1373, 1377.)

A trial court's exercise of discretion will not be disturbed on appeal unless, as a matter of law, an abuse of discretion is shown, i.e., where, considering all the relevant circumstances, the family court has exceeded the bounds of reason, or it can fairly be said that no judge reasonably would make the same order under the same circumstances.  (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 480.)  “ ‘As long as the court exercised its discretion along legal lines, its decision will be affirmed on appeal if there is substantial evidence to support it.’  [Citations.]”  (In re Marriage of Blazer (2009) 176 Cal.App.4th 1438, 1443 (Blazer ).)

To the extent we must decide whether the family court applied the correct legal principles, however, such question is one of law that we review de novo.  (See, e.g., Elsenheimer v. Elsenheimer (2004) 124 Cal.App.4th 1532, 1536 (Elsenheimer );  Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 800–801.)

II. Failure to Set a Termination Date

Section 4320, subdivision (l ) provides in part that in awarding spousal support a family court shall consider the “goal that the supported party shall be self-supporting within a reasonable period of time.”   This provision was added as subdivision (k) to section 4320 in 1996.  (Stats.1996, ch. 1163, § 1, p. 8488.)   It was not a part of the law at the time of the dissolution of Daniel and Cherryl's marriage in 1994, and there was nothing in the judgment of dissolution or in any agreement entered into by the parties in 1994 that called for Cherryl to become self-supporting.   The judgment specifically provided that spousal support would continue until Cherryl's remarriage or the death of one of the parties.

The case of In re Marriage of Richmond (1980) 105 Cal.App.3d 352, however, had been published 14 years before the judgment of dissolution was entered here.   The Richmond case gave rise to what is known as a “Richmond ” order;  specifically, an order “which sets spousal support for a fixed period based upon evidence that the supported spouse will be self-supporting by the end of the period.”  (In re Marriage of Prietsch & Calhoun (1987) 190 Cal.App.3d 645, 665.)

Daniel was represented by counsel in the dissolution of his marriage to Cherryl.   He could have requested a Richmond order at the time of the dissolution of his marriage.   There is no evidence that he requested such an order.   The judgment of dissolution contained no termination date for spousal support, no statement that Cherryl was to become self-supporting, and no provision that Cherryl obtain a college degree or career training.   It would have been an abuse of discretion to penalize Cherryl for not becoming self-supporting, or taking action to become self-supporting, when she had not been told that was the expectation.  (In re Marriage of West (2007) 152 Cal.App.4th 240, 251;  Gavron, supra, 203 Cal.App.3d at pp. 711–712.)

Also, there was no evidence to indicate that certain specific events were going to occur that would justify a conclusion by the family court that Cherryl would become self- supporting.   This failure of evidence is fatal to Daniel's argument, even though the family court acknowledged the goal that Cherryl become self-supporting.  (Blazer, supra, 176 Cal.App.4th at p. 1443.)

III. Application of Section 4320

Daniel contends the family court erred in applying section 4320 in that it (1) found that Cherryl had the ability to work an additional eight hours per week, instead of an additional 16 hours per week, “without unduly interfering with the interests of dependent children in her custody,” although there were no dependent children in her custody, and (2) failed to consider that Cherryl's income had increased since the date of the judgment of dissolution and the initial determination of spousal support.   The record does not support Daniel's contentions.

Daniel essentially is asking this court to determine if the family court applied the correct legal principles to its decisionmaking.  (Elsenheimer, supra, 124 Cal.App.4th at p. 1536.)   Our review of the record indicates the family court did not err in its application of the legal principles regarding modification of spousal support.   Having determined the family court did not err in the application of the law, the family court's ultimate determination is reviewed for abuse of discretion.  (Blazer, supra, 176 Cal.App.4th at p. 1443.)

40–Hour Work Week

We first note that it is judicial action and not judicial reasoning that is the proper subject of appellate review.  (El Centro Grain Co. v. Bank of Italy, etc.  (1932) 123 Cal.App. 564, 567.)   Although the family court's decision includes the statement referencing dependent children in her custody, we do not view the comment as a finding by the family court that Cherryl had custody of any dependent child.   Rather, it appears simply to be a repetition of the language of section 4320, subdivision (g), which addresses the ability of the supported party to be gainfully employed.

We also disagree with Daniel's contention that the family court should have determined that Cherryl was capable of working an additional 16 hours per week in order to become self-supporting.   Cherryl was working about 32 hours per week at the time of the trial;  the family court determined that she had the opportunity and ability to work an additional eight hours per week, for a total of 40 hours per week.

“Earning capacity” is defined as the income that a spouse is reasonably capable of earning based on his or her age, health, education, marketable skills, employment history, and the availability of employment opportunities.   (In re Marriage of Simpson (1992) 4 Cal.4th 225, 234 (Simpson ).)   Earning capacity, however, also must be based on an “objectively reasonable work regimen” at the time the support order is made.  (Id. at pp. 234–236.)

A 40–hour work week, which the family court imputed to Cherryl in setting spousal support, generally is considered full-time employment.  (See Lab.Code, § 515, subd. (c).)  Cherryl was 54 years of age at the time of the hearing and suffered from health issues, such as arthritis, tendonitis, and high blood pressure, which impacted her employment abilities.   Under these facts, the family court did not abuse its discretion by imputing an additional eight hours per week to Cherryl, for a total of 40 hours per week, instead of requiring Cherryl to work overtime hours.   Forty hours per week is an objectively reasonable work regimen.  (Simpson, supra, 4 Cal.4th at pp. 234–236.)

Income

Daniel also contends the family court failed to consider Cherryl's increase in income since the judgment and that she was capable of engaging in other forms of employment.   He is mistaken.

At the time the judgment with the initial support obligation was entered, Cherryl had income of $900 per month.   This was not earned income, as Cherryl was not employed at the time.   The $900 sum apparently was taken from the income and expense declaration she filed on January 4, 1993, which listed the sum of $900 as her total income derived from her share of interest and rental income earned by the community;  expenses were listed at $7,329.   Cherryl's most recent income and expense declaration listed average monthly income of $921.33, $15 of monthly interest income, and $2,000 in spousal support;  expenses were listed at $2,946 per month.

Thus, the record does not support Daniel's contention that Cherryl's “income had significantly increased since the time of the initial support order.”   Cherryl's income, other than spousal support, was substantially the same as when the initial support was established.

Daniel's contention that the family court failed to consider that the vocational evaluation found that Cherryl was qualified for office work also fails.   Koobatian testified that Cherryl was qualified for entry level office work and that her income from such a job would be no more than she was earning as a nanny if she were working a full 40–hour week.   The family court imputed income from a 40–hour work week to Cherryl in making its modification of spousal support, which finding was consistent with the expert's opinion.

The family court had before it the various income and expense declarations and Koobatian's testimony at the time it made its findings.   The findings reflected that the family court considered all this information before modifying spousal support.   The findings specifically reference inter alia Cherryl's current work schedule, her ability to work additional hours, the assets and obligations of the parties, and the marital standard of living.   Contrary to Daniel's contention, the record reflects that the family court considered all of the mandatory guidelines set forth in section 4320.

Once the family court considers the mandatory guidelines of section 4320, it has broad discretion to determine the amount and duration of spousal support and an award will not be reversed on appeal absent an abuse of that discretion.  (In re Marriage of Kerr (1999) 77 Cal.App.4th 87, 93.)   We conclude the family court did not abuse its discretion in reducing spousal support by $344 per month.

IV. Award of Attorney Fees

Daniel challenges the awarding of attorney fees to Cherryl because (1) Cherryl should have acceded to Daniel's demands to modify spousal support without requiring him to go to court, and (2) the award was not just and reasonable.

Daniel's prehearing demands of Cherryl were that spousal support be substantially reduced beyond the reduction eventually ordered by the family court.   He also wanted an end to the payment of support, with the termination to come no later than two years from the date of the modification.

Daniel cites no authority for the proposition that Cherryl was required to agree to these demands as a condition to obtaining an award of attorney fees.   His implication is that Cherryl thwarted settlement unreasonably, thus nullifying her right to receive an award of attorney fees.   The decision of the family court completely refutes this implication.

The only case cited by Daniel as support for this contention is Alan S. v. Superior Court (2009) 172 Cal.App.4th 238.   In that case, the attorney fees ordered to be paid by the husband on behalf of the wife left husband unable to afford counsel.   Husband would be acting pro per in a child custody dispute as a result.  (Id. at pp. 242–243.)   Such is not the case here.   Daniel had $716,000 in cash at the time of trial;  Cherryl had $24,000.

The family court applied sections 2030 and 2032 to award Cherryl attorney fees after finding:  “There is no question that the respective needs and incomes of the parties

here militate in favor of an award of attorneys' fees to petitioner.   Petitioner earns only

a fraction of what respondent earns and has a fraction of respondent's net worth and

no realistic prospect for substantially improving her net worth.   Petitioner has been

required to borrow money from her credit card in order to pay counsel to this point.”   The evidence supports the family court's finding.

Daniel also implies the award of $15,175.78 in attorney fees was not just and reasonable because Cherryl had requested the sum of $12,281.43 at the time of the hearing.   This sum of $15,175.78, however, was the amount requested by Cherryl in her posttrial brief and not an arbitrary figure selected by the family court.   Again, the record supports the amount of the award.

An award of attorney fees in a dissolution action is left to the sound discretion of the trial court.  (In re Marriage of Harrison (1986) 179 Cal.App.3d 1216, 1231.)   Daniel has failed to establish an abuse of that discretion.

DISPOSITION

The order is affirmed.   Costs on appeal, including attorney fees, are awarded to Cherryl Jenkins.

CORNELL, J.

WE CONCUR:

WISEMAN, Acting P.J.

FRANSON, J.

FOOTNOTES

FN1. We will refer to the parties by their first names, not out of disrespect but to avoid any confusion to the reader..  FN1. We will refer to the parties by their first names, not out of disrespect but to avoid any confusion to the reader.

FN2. All further statutory references are to the Family Code..  FN2. All further statutory references are to the Family Code.