Appellant Karen McBrien challenges an order reducing and then terminating spousal support as of December 31, 2016, based on a material change in circumstances. The points raised by appellant have not demonstrated error in the trial court's (1) findings of fact, (2) identification of the applicable legal principles, or (3) the application of those principles to the facts found by the court.
We therefore affirm the order terminating spousal support.
Karen and David McBrien were married in 1991. Their daughter was born in 1993. In December 2004, after 13 years of marriage, Karen filed for dissolution of the marriage. During the proceeding, David was ordered to pay spousal support. The amount of spousal support has been the subject of many motions over the past 12 years. An August 10, 2006, minute order stated that, pending further order of the court, a Gavron warning
In February 2013, Karen's mother died. Her mother's will placed property estimated in value at $605,952.31 into a trust and made Karen the beneficiary of a 30 percent interest. In March 2013, shortly after her mother died, the trial court declared Karen was a vexatious litigant.
In November 2013, David filed a motion to terminate or, in the alternative, reduce spousal support. In March 2014, the trial court issued a minute order stating (1) Karen could appear telephonically at the hearing scheduled in May 2014, and (2) any documents Karen wished the court to consider regarding her efforts to obtain disability, social security or employment should be filed and served (by April 29, 2014) as an opposition to the motion to modify spousal support.
On May 20, 2014, the court held a hearing on David's motion to modify spousal support. Karen represented herself at the hearing and appeared by telephone. David's attorney was present in court. At the hearing, Karen did not disclose the existence of her mother's will or its terms. The court issued a minute order stating it did not find a change in circumstance to modify the spousal support order.
In October 2015, David filed the motion to modify spousal support that is the subject of this appeal. On November 10, 2015, a pro tem judge held a hearing on the motion. The minute order reflects the decision to continue the hearing for six days so it could be heard by a judge who was familiar with the case and had made prior findings and orders. Notice of the minute order was sent to Karen by mail.
On November 16, 2015, David and his attorney were present for the continued hearing on David's motion to modify spousal support. Karen did not attend. David's attorney raised the issue of Karen being a beneficiary under her mother's will and the fact Karen had not made the court or David aware of this fact. The court rescheduled the matter to allow Karen to provide information as to her income and to allow David to submit any additional information as to the changed circumstances. The court ordered, effective December 1, 2015, that David could deduct $600 per month from the spousal support payment to be applied to attorney fees owed by Karen.
On July 28, 2016, after additional continuances, David's motion to modify spousal support was heard. Karen represented herself and appeared by telephone. David and his attorney were present at the hearing. The trial court issued a minute order explaining its decision to grant the motion:
The court issued a step-down order that reduced spousal support from $2,500 a month to $1,250 a month beginning August 1, 2016, and concluding December 31, 2016, at which time spousal support would terminate. The court confirmed its previous order allowing David to deduct $600 a month from the support payment to offset attorney fees owed by Karen. The court also directed David's attorney to prepare the order.
On August 3, 2016, the trial court signed the order prepared by David's attorney. The order stated the court found a material change in circumstance to modify and terminate the existing spousal support orders based on (1) the age of the parties (Karen was 61 and David 58); (2) Karen's failure to file an income and expense declaration; (3) Karen's failure to show what efforts she had made to become employable; (4) David's declaration establishing that Karen's mother's will left 30 percent of $605,952.31 to Karen to be held in trust and distributed liberally by the independent trustee in monthly installments at the trustee's discretion; and (5) the parties being married for just over 13 years and David having paid spousal support for 11 years.
Based on these findings, the court ordered a 50 percent reduction of the monthly spousal support payments to Karen to $1,250, with David being allowed to offset the balance of the attorney fees owed to him at a rate of $600 per month. Thus, beginning on August 1, 2016, the total monthly amount payable was $650. The court ordered the termination of spousal support and of its jurisdiction over spousal support effective December 31, 2016.
On August 15, 2016, Karen filed a "RESPONSIVE DECLARATION TO REQUEST FOR ORDER" on mandatory Judicial Council form FL-320 (rev. July 1, 2016), which included a five-page handwritten attachment on Judicial Council forms MC-025 (rev. July 1, 2009) and MC-020 (new Jan. 1, 1987). Karen's responsive declaration stated she did not consent to the order requested by David, but consented to an order of spousal support as provided in the 2014 order. Karen also requested an order of spousal support of health insurance because ABC Supply has wrecked her insurance chance.
The handwritten attachment to Karen's responsive declaration asserted a number of points, a few of which are summarized here. Karen asserted the papers she had submitted to the court had not been sent to the judge who ruled on the motion. Karen stated she opposed the order after hearing submitted by David's counsel as it contained errors and mistakes. She also claimed David had not provided full disclosure about any of his inheritance, the wills of his parents, and the salary and assets of his new wife, all of which were relevant to David's changed circumstances. The attachment stated Karen's demand for full disclosure.
Addressing the order's statement that Karen failed to show what efforts she had made to become employable, Karen asserted "I did tell this court I checked job opportunities" and described her difficulties in obtaining employment. Karen stated she opposed "any further vexatious list of me as of 2013" and asserted "DC agencies told me `[David's attorney]
The docket does not show any response by David or the court to the paper Karen filed on August 15, 2016. In September 2016, Karen filed a notice of appeal. We note that prior appeals by Karen resulted in two unpublished decisions by this court. (In re Marriage of McBrien (Mar. 23, 2010, F055763) [nonpub. opn.]; In re Marriage of McBrien (Jul. 29, 2009, F054684) [nonpub. opn.].)
A motion for modification of spousal support may be granted only if there has been a material change of circumstances since the support order was entered. (In re Marriage of Biderman (1992) 5 Cal.App.4th 409, 412.) The moving party has the burden of showing a material change of circumstances since the last support order was made. (In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 575.)
When determining whether a material change of circumstances occurred, the trial court considers the same statutorily prescribed criteria that are relevant to initial orders of spousal support. (In re Marriage of Terry (2000) 80 Cal.App.4th 921, 928; see Fam. Code, § 4320 [criteria for spousal support].) The criteria include ability of the supporting spouse to pay, the needs of each party based on the standard of living established during the marriage, the obligations and assets of each party, and the balance of hardship to each party. (Fam. Code, § 4320, subds. (c)-(e), (j); see In re Marriage of McCann (1996) 41 Cal.App.4th 978, 982 [inquiry considers all factors affecting need and ability to pay].)
In general terms, a change of circumstances is "material" if it has great significance or is of such a nature that knowledge of the item would affect a person's decisionmaking. (In re Marriage of Bodo (2011) 198 Cal.App.4th 373, 391-392.)
The modification of a spousal support order is dependent upon the facts and circumstances of the particular case, and the propriety of an order granting or denying the modification is committed to the discretion of the trial court. (In re Marriage of Olson (1993) 14 Cal.App.4th 1, 7.) The trial court's exercise of that discretion will not be disturbed unless an abuse of discretion is shown as a matter of law. (Ibid.) An abuse of discretion exists where, considering all the relevant circumstances, the trial court exceeded the bounds of reason or it can fairly be said that no judge reasonably would have made the same order under the same circumstances. (Ibid.)
When reviewing an order granting a motion for modification of spousal support, appellate courts refer to the principle that, where there is no substantial evidence of a material change of circumstances, the order will be overturned for an abuse of discretion. (E.g., In re Marriage of Dietz (2009) 176 Cal.App.4th 387, 398.)
When an appellant is challenging an express finding in favor of the party with the burden of proof, the finding will be upheld if it is supported by substantial evidence. (See In re I.W. (2009) 180 Cal.App.4th 1517, 1527-1528.) Similarly, when the appellant is challenging an implied finding in favor of the party with the burden of proof, the reviewing court will infer the existence of that implied finding only if it is supported by substantial evidence. (Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 745 [superior court's implied findings of fact are accepted if supported by substantial evidence]; In re Marriage of Catalano (1988) 204 Cal.App.3d 543, 549 [implied finding that former wife's needs were not currently being met was supported by substantial evidence].)
In the argument section of her appellant's opening brief, Karen contends the trial court erred by not considering her needs as a 62-year-old, who has medical problems, is delusional and is not able to work. She referred to Family Code section 4320. Karen asserts she needs spousal support now at $1,900 a month as the court previously saw fit to do.
California courts have stated that the failure to consider and apply the statutory factors set forth in Family Code section 4320 constitutes an abuse of discretion. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 305 (Cheriton).) In Cheriton, the court stated:
Based on this conclusion, the appellate court remanded the matter with directions for the trial court to consider all applicable statutory factors, including the former husband's ability to pay. (Cheriton, supra, 92 Cal.App.4th at p. 306.)
The present case is distinguishable from Cheriton because in Cheriton the failure to consider and apply the statutory factors was "clear." (Cheriton, supra, 92 Cal.App.4th at p. 305.) Such clarity does not exist in the present case. Rather, the court's minute order stated: "The Court analyzed the factors under FC 4320." In addition, the written order subsequently signed by the court explicitly noted the ages of the parties. Based on these statements, we conclude the trial court considered Karen's age, physical and mental health, and, to the extent possible, her employability. As to this last factor, the court's signed order stated it considered Karen's failure to show what efforts she had made to become employable.
In sum, Karen's claim that the trial court erred by not considering the factors contained in Family Code section 4320 is not established by the record before this court. The trial court explicitly referred to Family Code section 4320 and stated it had analyzed the factors.
Karen's papers identify three factual findings that she regards as inaccurate. First, her appellate brief asserts she obeyed the court's Gavron warning to look for work and a new career. Second, papers Karen filed after the trial court ordered modification of spousal support stated: "My inheritance is not $600,000, an
To prevail on a claim of factual error, Karen must demonstrate that the record lacks substantial evidence supporting the trial court's finding. (See pt. I.B.2., ante.) Here, Karen has failed to make that demonstration because the record presented does not contain David's moving papers and the declarations offered in support of his motion. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [appellants must affirmatively demonstrate error]; In re Marriage of Bowen (2001) 91 Cal.App.4th 1291, 1301 (Bowen) [appellant has the burden of proving error].) As a result, this court is unable to determine whether the challenged findings are supported by substantial evidence and must resolve the issue against appellant. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296; Ballard v. Uribe (1986) 41 Cal.3d 564, 574.)
The order modifying spousal support is affirmed. Respondent shall recover his costs on appeal.
