Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BD367965 Mark A. Juhas, Judge.
Law Offices of Marjorie G. Fuller and Marjorie G. Fuller for Appellant.
Honey Kessler Amado and Katherine Perkins Ross for Respondent.
CHAVEZ, J.
Robin G. Rolfes (Robin) appeals from a postjudgment order modifying her spousal support award. We find no abuse of discretion and therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The original judgment of dissolution
Robin and Gary Rolfes (Gary) were married in April 1975 and separated 27 years later, in April 2002. The marriage was dissolved as of December 31, 2004. A stipulated judgment of dissolution resolving all property and support issues was entered on February 2, 2005. At the time of the divorce, Robin was 55 years old and Gary was 53 years old. They had two adult daughters.
During the marriage, Gary was the primary earner. In the 10 years prior to the date of separation in 2002, his gross, base salary rose from $150,000 to $326,000 per year. In addition, he received substantial bonuses in the last few years before the date of separation. In 2002, Gary earned a base salary of $338,200 at Candle Corporation (Candle), a computer software company.
Robin holds a bachelor’s degree in mathematics and psychology and a master’s degree in psychology. During the first 15 years of the marriage, Robin worked for various employers as a computer programmer. Robin also obtained a real estate license and briefly sold real estate. Robin had been unemployed between 1991 and the time of the dissolution of marriage.
After the parties separated, Candle was purchased by International Business Machines, Inc. (IBM). While the offer was pending, Gary received a $1 million retention bonus from his employer. Robin received a portion of the community share of the bonus as part of the property settlement.
In June 2004, the purchase of Candle by IBM was complete. Gary was paid a transaction bonus of approximately $725,000 so that he would remain with the company and assist with the transition. This transaction bonus was paid in three installments: one-third in June 2004, one-third in December 2004, and one-third in June 2005. In addition to the transaction bonus, Gary was paid two, one-time incentive bonuses in 2004, totaling approximately $1 million. In 2005, in addition to his base salary from IBM and the final installment on the transaction bonus, Gary received a severance bonus of approximately $806,000. Gary’s position was terminated in January 2005.
The judgment of dissolution incorporating the stipulation between the parties, noted that Robin had not been employed since 1991 but was “currently pursuing a career in acting, singing, and voice-overs.” In addition, while noting that Gary was not employed, it was acknowledged that the “transition and transactional payments” gave him “the ability to pay the support” provided in the judgment. Robin’s needs were determined to be $17,500 per month to sustain her at the marital standard of living. Gary agreed to pay Robin the sum of $15,000 per month. The judgment further specified:
“The spousal support provisions of this Judgment are absolutely non-modifiable as to amount or duration by either party for any reason and regardless of any change in the circumstances of the parties or the unrealized expectations of a party for the period from December 1, 2004, through November 30, 2006, after which time either party may file a proceeding to modify the support.”
However, the judgment was “modifiable without further change of circumstances as to duration and amounts for support due on or after December 1, 2006, upon request of either party in an Order to Show Cause filed after November 1, 2006.”
The judgment included the following admonition:
“[Robin] understands that it is the goal of this state that each party shall make reasonable good faith efforts, using her current education and ability and talent, to become self-supporting as provided for in Family Code §4320. Good faith efforts include, but are not limited to, finding employment in the field(s) in which she is qualified to work, whether or not she wants to work in that field, and failure to do so may result in the court imputing income at the level at which she could be employed, even if she has failed to obtain such employment, if said employment is available. The failure to make good faith efforts may be one of the factors considered by the court as a basis for modifying or terminating support after December 1, 2006.”
This type of warning is known as a “Gavron warning” because it was set forth in In re Marriage of Gavron (1988) 203 Cal.App.3d 705 (Gavron). The term “Gavron warning” indicates a fair warning to the supported spouse that he or she is expected to become self-supporting. (In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 55 (Schmir).)
2. The parties’ subsequent efforts to obtain employment
In mid-January 2006, Gary began working at LRN, Inc., where he had obtained a position as Chief Financial and Administrative Officer. His base salary there was $325,000 gross per year, which was approximately $27,000 per month. Gary was also eligible for a discretionary annual performance bonus of up to 40 percent of his annual base salary. His total earnings for 2006 were $311,456, his lowest annual earnings since 1994.
Robin had begun training for a career in the performing arts in 2000. She had been studying acting, singing, and voice-over techniques. By 2007, she had a commercial agent and had performed various roles on television. She had also appeared in a feature film. Robin was on four online actors’ websites and made continuous efforts to submit herself for projects. She was also on the Internet Movie Database. From January 2006 through June 2007, Robin had 12 paid acting jobs, for which she earned a total of $1,800.
In addition, to build on her psychology degrees, Robin had embarked on a career as a personal consultant/life coach. Robin had begun a program to become certified in level 2 of Hemispheric Integration using Neuro-Linguistics (HI/NLP), which studies how people interpret and store their experiences in their brain. Robin expected her starting rate as a life coach to be $60 per hour.
Robin claimed that she was making her best good faith efforts to become financially independent in her chosen careers. She believed she was “highly marketable” as an actor and that both acting and counseling were the careers with the most significant income potential for her.
3. Gary’s order to show cause to reduce or terminate Robin’s support payments
On December 1, 2006, Gary filed an order to show cause (OSC) to reduce or terminate Robin’s spousal support. In his declaration filed in support of the OSC, Gary argued that he was the sole supporter of the Rolfes’ two daughters in college. He also argued that the prior decision to set the spousal support at $15,000 per month was based on the various bonuses and severance payments he received in 2004 and 2005 which made his income “excessively high.” He stated that with his current base salary of $325,000 he could not continue to pay Robin the sum of $15,000 per month. While he acknowledged that Robin was apparently not currently employed, he argued that with her degrees and skills she was capable of earning $60,000-$100,000 if she applied herself. If Robin was choosing not to work, Gary asked that the court impute income to her based on her ability to earn.
In connection with the OSC, Gary filed a motion for a vocational evaluation of Robin. Robin opposed the motion, arguing that there was no good cause for the evaluation. She asserted that she had been making good faith efforts to become financially independent by pursuing two careers. One was to be an actress, the other, a life coach. The trial court denied Gary’s request for a vocational evaluation.
Robin’s responsive declaration asked that all current orders remain in full force and effect. Robin stated that she was continuing to make good faith efforts to become self-supporting and that Gary was “easily” able to pay the spousal support ordered by the court two years before. Robin set forth details of her efforts to become successful in her acting and personal consulting careers, concluding that both of these careers were excellent choices for her. Robin acknowledged that Gary’s current earnings were the lowest he had since several years before their separation. But she believed that Gary was deliberately manipulating his income.
Prior to the hearing on the matter, Gary submitted the declaration of vocational expert Susan W. Miller (Miller). Miller is a National Certified Career Counselor and Vocational Evaluation Specialist. Though Miller did not meet with Robin, she reviewed all of the documentation included in Robin’s opposition to Gary’s motion for a vocational evaluation. She also undertook independent research of the pay scales of similarly situated actors in Los Angeles. She concluded that the annual earnings of actors in Los Angeles with various experience ranges from $31,000 to $50,000.
Gary’s accountant, Stuart D. Allen, CPA (Allen), calculated Gary’s average monthly cash flow as of December 31, 2006, to be $32,030, not including any potential bonus. Allen calculated Robin’s monthly interest and dividend income to be $1,230.
In his declaration filed in reply to Robin’s responsive declaration, Gary asked that the court impute $36,000 annual income to Robin based on Miller’s conclusions. Gary noted that Robin had received a warning from the court that “you’ve got to make money, and if the average person with a college education could go out and substitute teach and make $35, $40,000 a year, that’s what you should be doing.” Gary argued that if Robin is not successful in the entertainment business, but has chosen to continue to work in that field, then income should be imputed to her.
4. The hearing
The matter was heard on May 29, May 30, and June 5, 2007. Robin and Gary testified. Robin testified that she began her training for a career in entertainment in 2000, prior to the parties’ separation. She had not earned any money from singing or from her coaching/consulting career, but she had earned small amounts from acting, and anticipated greater financial success. Robin testified that she had made about $1,800 from her acting career, including a lead role, that she had a “passion” for this career, and that she knew “with a hundred percent certainty” that she will be successful and “will make excellent money.”
As to her alternate career as a life coach, Robin testified that she had a business plan and a plan to build clientele. She also had located an office space, and had printed business cards. She testified, “I am ready right now to start seeing clients,” charging a rate of $95 per hour.
Gary testified that his annual base compensation was $325,000. In addition, he was eligible to participate in a bonus program. Gary’s company had not completely met its goals in 2006; however, he did anticipate receiving a bonus. The bonus would probably be around $110,000 or $115,000. Gary also received certain stock options which had begun to vest in 2007.
5. The court’s order after hearing
On June 15, 2007, the trial court issued a tentative decision. First, the court set forth the standard for awarding spousal support, as set forth in Family Code section 4320. The court also discussed the marital standard of living and concluded that, while the judgment of dissolution provides that Robin needs $17,500 per month to meet the marital standard, “she has been able to largely financially make it on the $15,000 per month in addition to her investment income.” The court then set forth its analysis of the relevant factors under Family Code section 4320.
The court indicated that there were two factors which weighed heavily on its decision: “the fact that [Robin] has a responsibility to become self sufficient which, based on the evidence before the court, she is marginally attempting to accomplish [and] [s]econdly, [Gary’s] income has dropped significantly.” The court declined to impute income to Robin from her life coaching career because she had not been in the position to seek employment in that field until she completed her training, but imputed to her $40,000 per year for her employment in the entertainment industry. In making its support order, the court built in time frames to allow Robin to establish a life coaching business before stepping down the support.
The court noted that if Robin became employed at least part time in the life coaching industry, she would make approximately $95,000 per year or $8,000 per month.
The court ordered that, beginning January 1, 2007, Gary would pay Robin $7,500 per month until December 31, 2009, at which time the amount would decrease to $3,500 per month payable until either party’s death, Robin’s remarriage, modification, or termination of the court’s order. In addition, the court ordered Gary to pay Robin 20 percent of any bonus received in or for the years 2007, 2008, and 2009.
6. Robin’s objections and the court’s final ruling
On June 29, 2007, Robin filed objections to the court’s tentative statement of decision. She listed eight controverted issues for which she asked the court to provide its specific legal and factual bases.
On July 11, 2007, the court issued its ruling. The court noted that the findings and corrections were made after the court read and considered the parties’ objections to the court’s tentative decision. The tentative decision was modified only in the particulars discussed therein, and was otherwise the final ruling of the court.
In the July 2007 ruling, the court addressed each of Robin’s objections. Robin first asked for the legal and factual basis for the court’s findings that employment was available to Robin in the acting field at an annual salary of $40,000, and that she had the ability to earn $95,000 as a life coach once she becomes employed. In response, the court noted that Robin had chosen to seek employment in a notoriously difficult industry. The court indicated that while Robin was free to choose this field, the question was how long Gary must continue to support her and at what level. In addition, the court pointed out that Robin testified at trial that she was ready to work as a life coach and that she would quickly develop a clientele. The court pointed out that Robin “holds out the fact that she will be a success as a reason that the court should not hold her to a steadier job path,” while at the same time “she has not really ever established a foothold.” The court felt that the evidence indicated that “she should have, as the judgment required, sought employment in a more predictable environment.” Nevertheless, the court felt that the judgment allowed Robin “a bit more time to establish herself in the entertainment industry.”
Robin’s second issue was the court’s basis for reducing Robin’s support award by $7,500 per month while imputing monthly income of $3,333 to her. In response, the court noted that Gary’s income was lower than it had been in the past. In addition, the court noted, it had taken into account Robin’s investment income. Robin also sought specifics as to the reasons for the retroactivity of the order to January 1, 2007. The court indicated that the filing of the OSC was December 1, 2006. Thus, the modification was “current” as of January 1, 2007.
Next, Robin asked for the basis for the court’s implication that Robin will be able to earn more than $40,000 annually as of January 1, 2010, when a further step-down in support will be effective. The court responded that this was based on Robin’s testimony that “she will be able to establish and maintain a thriving [life coaching] business as well as increase her success in the acting field over the next two and one-half years.”
Robin’s fifth objection involved the basis for the court’s implication that Robin had not made reasonable efforts to become self-supporting by only pursuing acting and life coaching. The court emphasized that the judgment’s warning was quite aggressive, requiring her to seek and maintain employment in any area that she is qualified for, even if she does not want that particular employment. Robin instead has chosen a career path that has not provided a source of income, and that she had “[passed] well beyond a reasonable re-education period.”
In response to Robin’s three final objections, the court noted that there was no evidence presented that Robin was unemployed during the marriage specifically for the purpose of supporting Gary’s career; that there was no evidence of any unusual tax consequences as a result of the current order; and that there was specific evidence in support of its decision that Robin was able to financially “make it” on the support awarded to her.
The court signed a formal order after hearing on September 25, 2007.
On September 4, 2007, Robin filed a notice of appeal from the court’s ruling on submitted matter filed on July 11, 2007.
DISCUSSION
Robin challenges the modification order in several respects. First, she claims that the trial court improperly weighed the factors set forth in Family Code section 4320. In doing so, she argues, the court failed to recognize that the support order would not meet her needs, and failed to consider the length of the marriage and her age. In addition, Robin claims that the court erred by imputing income to her. Finally, Robin argues that the trial court erred in reducing Robin’s spousal support retroactive to January 1, 2007, and erred in ordering a future step-down.
In her opening brief, Robin claimed that the court erred in failing to consider the threshold question of whether there had been a change of circumstances prior to modifying her spousal support award. Gary pointed out in his brief that the prior judgment specified that the spousal support ordered therein was modifiable “without further change of circumstances.” In her reply brief, Robin conceded that Gary is correct, and withdrew this argument.
I. Standard of review
A trial court’s order modifying a spousal support award is reviewed for abuse of discretion. (In re Marriage of Shaughnessy (2006) 139 Cal.App.4th 1225, 1235 (Shaughnessy).) “In exercising its discretion the trial court must follow established legal principles and base its findings on substantial evidence. If the trial court conforms to these requirements its order will be upheld whether or not the appellate court agrees with it or would make the same order if it were a trial court.” (Schmir, supra, 134 Cal.App.4th at p. 47, fn. omitted.)
Under the abuse of discretion standard, we do not disturb the trial court’s ruling unless, considering all the relevant circumstances, the court has “exceeded the bounds of reason” or it can “‘fairly be said’ that no judge would reasonably make the same order under the circumstances.” (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 480.)
II. Law governing trial court’s exercise of discretion
“In exercising discretion whether to modify a spousal support order, ‘the court considers the same criteria set forth in [Family Code] section 4320 as it considered when making the initial order.’” (In re Marriage of Bower (2002) 96 Cal.App.4th 893, 899 (Bower).) Family Code section 4320 requires the court to consider, in pertinent part:
“(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.
“[¶] . . . [¶]
“(h) The age and health of the parties.
“[¶] . . . [¶]
“(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 [Family Code] 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.
“[¶] . . . [¶]
“(n) Any other factors the court determines are just and equitable.”
Generally, “‘“[m]odification of spousal support . . . requires a material change of circumstances since the last order. [Citations.]”’” (Bower, supra,96 Cal.App.4th at p. 899.) In this matter, the parties agreed that the stipulated judgment of dissolution entered on February 2, 2005, would be modifiable “without further change of circumstances.” Therefore, a change of circumstances was not considered at trial.
III. The trial court did not abuse its discretion in applying the factors set forth in Family Code section 4320
In its tentative decision, the trial court set forth its consideration of the factors set forth in Family Code section 4320 in detail. No relevant factor was omitted from the court’s discussion. Thus, the court fulfilled its legal obligation to consider each factor enumerated therein. Robin’s argument is based on her position that the court abused its discretion in weighing the significance of certain factors.
A. Robin’s financial needs
Among the factors the trial court was required to consider in making its award were “[t]he needs of each party based on the standard of living established during the marriage.” (Fam. Code, § 4320, subd. (d).) Robin argues that the court did not take her needs into consideration when it modified her spousal support. Specifically, Robin argues that the original stipulated judgment found that Robin was entitled to $17,500 per month in order to sustain the marital standard of living. In addition, Robin’s income and expense declaration showed her monthly expenses to be $16,738. The trial court found that Robin was able to financially “make it” on $15,000 per month along with her investment income. Robin argues that, even taking into consideration imputed income of $3,333 per month and support of $7,500 per month, Robin’s total income would be $10,833 per month, well below the amount the court found to be necessary. Robin cites In re Marriage of Beust (1994) 23 Cal.App.4th 24, 29-30 (Beust) for the proposition that “failure to give any weight to [the wife’s] evidence of continuing need is . . . egregious in light of [the husband’s] continuing ability to pay spousal support.”
The tentative judgment shows that the trial court did consider Robin’s needs. In its consideration of Family Code section 4320, subdivision (d), the court acknowledged that the judgment of dissolution had set the marital standard of living at $17,500 per month. However, in response to Robin’s objections to the reduction of her spousal support, the court noted that “the income of the respondent is lower than it has been in the past.” This factor, combined with Robin’s investment income, contributed to the court’s decision to lower Robin’s support to $7,500 per month. In other words, the court properly considered Robin’s reasonable needs but also properly considered Gary’s current ability to pay. (Fam. Code, § 4320, subd. (c).) Specifically, the court noted that Gary’s “average monthly income for 2003-2005 was $131,000; in 2006 the average monthly income was $32,000.00.” The court noted that “the vast majority of [Gary’s] income in 2004 and 2005 was related to the one time bonuses that he received from Candle/I.B.M. At the current time, [Gary] is making about 25% of his earlier income.”
In her reply brief, Robin disputes the court’s factual finding that Gary’s income had declined. She argues that Gary first asserts that he was unemployed at the time of the original agreement, then claims his ability to pay support was reduced from $131,000 per month to $32,000 per month, and that he “can’t have it both ways.” We find that substantial evidence supports the trial court’s finding regarding the reduction in Gary’s income. The judgment of dissolution, filed February 2, 2005, specified that while Gary was not employed at the time, he was scheduled to received “transition and transactional payments in December, 2004, and in June, 2005, and severance pay in January, 2005” which were allocated to the next 24-month period from December 1, 2004 to November 30, 2006. These bonuses gave him “the ability to pay the support provided below for the stated two year period.” Thus, Gary’s ability to pay the $15,000 per month through November 2006 was specifically based on the nondiscretionary bonus payments he was scheduled to receive. The evidence showed that during the 2003-2005 time period he received: a transaction bonus from Candle and IBM of approximately $725,000, two incentive bonuses totaling approximately $1 million, and a severance bonus of approximately $806,000. The evidence of these bonuses, plus Gary’s regular salary earned prior to the time he lost his job in January 2005, supports the trial court’s finding of an average gross monthly income of $131,000 during 2003-2005. Gary’s expert, Allen, provided evidence that Gary’s current cash flow was $32,030 per month. Thus, the trial court’s finding that Gary’s income had declined since the time of the initial support award was sufficiently supported.
Beust is distinguishable. There, the parties’ stipulated judgment had provided that the husband’s support would continue for six years and thereafter would be reduced to one dollar per year. (Beust, supra, 23 Cal.App.4th at p. 26.) The former wife filed a modification order seeking to extend her support beyond the six-year period. She provided evidence that she was still dependent upon continued support from her former husband in order to meet her continuing needs. Although it found that the former wife’s expenses “far outreach” any income she brings in, the trial court denied her modification motion. The Court of Appeal reversed, concluding that “[w]here, as here, the marriage is of long duration and the wife is without employment skills, the husband’s support obligation may be extended” (id. at p. 29), especially where the husband had a “continued standard of living much higher than the wife’s” (id. at p. 30). Here, in contrast, Robin possesses marketable employment skills; there is no evidence that her current standard of living falls significantly below Gary’s; and there is no question as to termination of her support, only reduction.
The reduction to one dollar per year, a commonly used vehicle for continued jurisdictional support, merely preserved the former wife’s right to seek an extension of the period of time during which spousal support would be paid.
Robin cites In re Marriage of West (2007)152 Cal.App.4th 240 (West) for the proposition that the court must find a balance between a spouse’s imputed income and the amount by which a spousal support award is reduced so that the former spouse’s reasonable needs continue to be met. West is distinguishable because the evidence showed that the former husband’s income had continued to rise since the parties’ divorce. (Id. at p. 245.) Thus, in contrast to the matter before us, the question of a drop in the former husband’s earnings was not factored in to the court’s analysis of the reasons for the reduction in the amount of the former wife’s support payments.
In her reply brief, Robin concedes that Gary’s monthly cash flow from his base salary was calculated to be approximately $32,000. She further concedes that, under In re Marriage of Mosley (2008) 165 Cal.App.4th 1375 (Mosley), this monthly cash flow does not support a $15,000 per month support order. However, she argues that her percentage of Gary’s bonuses actually received should be increased in order to bring the annual support to the amount needed for Robin to meet the marital standard.
In Mosley, the reviewing court reversed a monthly support order to the former wife based on the former husband’s annual earnings, including discretionary bonuses, divided into monthly average earnings. The court stated that it was inappropriate to base a support order on “the predicted receipt of a huge bonus that might never materialize.” (Mosley, supra, 165 Cal.App.4th at p. 1379.) Instead, the court found that the appropriate way to fashion a support order is on base salary, plus a method for requiring a division of any bonus income that the former husband may in fact receive. (Id. at p. 1387.) Robin concedes that this is precisely what the trial court did in this case.
This argument places too much emphasis on the marital standard of living. “Section 4330 does not make ‘marital standard of living’ the absolute measure of reasonable need. ‘Marital standard of living’ is merely a threshold or reference point against which all of the statutory factors may be weighed. [Citation.] It is neither a floor nor a ceiling for a spousal support award. [Citation.] The Legislature intended ‘marital standard of living’ to be a general description of the station in life that the parties had achieved by the date of separation. [Citation.]” (In re Marriage of Nelson (2006) 139 Cal.App.4th 1546, 1560.) The court found that Gary’s income had decreased to 25 percent of what he was making at the time the marital standard of living was set. Implicit in that finding was a determination that neither Gary nor Robin can expect to live at the marital standard on Gary’s current income.
The trial court properly considered Robin’s reasonable needs, and balanced those needs with Gary’s current ability to pay. No abuse of discretion occurred.
B. The court’s imputation of income to Robin was not erroneous
Robin next argues that the trial court abused its discretion by imputing income to her. Robin argues that the income imputed to her was based on speculation, and that the court erroneously applied the earning capacity standard.
1. Relevant law on imputation of income
In order to impute income to an individual, a court must apply a test initially set forth in In re Marriage of Regnery (1989) 214 Cal.App.3d 1367, known as the “Regnery rule.” (In re Marriage of Bardzik (2008) 165 Cal.App.4th 1291, 1302 (Bardzik).) This test requires the court to consider three factors before imputing income to a former spouse: “ability to work,” “willingness to work,” and “opportunity to work which means an employer who is willing to hire.” (Regnery, supra, at p. 1372.) “Later courts, recognizing that the second element, willingness to work, should be taken for granted, recast Regnery’s three-prong test as a simple two-prong test: ability and opportunity. [Citations.]” (Bardzik, supra,at p. 1302.)
However, the moving party’s burden “does not include actually showing that the [spouse] to whom the income would be imputed would have gotten a given job if he or she had applied.” (Bardzik, supra,165 Cal.App.4th at p. 1305.) For example, in In re Marriage of LaBass & Munsee (1997) 56 Cal.App.4th 1331, the evidence showed that a former, custodial spouse held a substitute teaching credential which would have allowed her to teach anywhere in the Los Angeles Unified School District. The moving party presented opinion testimony indicating that the custodial parent could obtain full-time employment; numerous want ads soliciting applications from persons with the custodial parent’s qualifications; and a pay scale obtained from the school district. This evidence was sufficient to impute income to the custodial parent based on a capacity to earn. (Id. at pp. 1334-1335.) Thus, Gary was only required to show opportunities for Robin to work, and did not bear a burden of convincing the court that Robin would have secured any particular job had she applied.
2. Basis of the court’s decision to impute income to Robin
Robin points out that, in asking the trial court to impute income to Robin, it was Gary’s burden to provide substantial evidence of Robin’s ability and opportunity to earn. (Bardzik, supra, 165 Cal.App.4th at p. 1305.) Robin contends that Gary provided nothing more than speculation concerning her future earnings and employment. Robin cites In re Marriage of Prietsch & Calhoun (1987) 190 Cal.App.3d 645 (Prietsch), for the proposition that orders concerning spousal support “should not be based on speculation regarding future earnings and employment,” but should be “deferred until the realized facts demonstrate whether further support is warranted.” (Id. at p. 659.)
First, Robin argues that the court erroneously based its imputation of income on Robin’s statements that she was going to be a successful actor. Robin quotes the court’s statement that “if [Robin] is going to rest on the fact that she will be able to make a living in acting,” then “the court can find there are jobs available to her, based on her own testimony.” Robin’s testimony did indicate her belief that she was making “huge progress” in her chosen career as an actor. She knew with “a hundred percent certainty” that she would be successful as an actor, and that she will make “excellent money.” Upon the court’s inquiry as to when Robin would feel that “I have done this long enough,” in that she was not making much money as an actor, Robin responded, “I will never say that. This is what I must do. This is what I came to this earth to do.” Thus, Robin’s testimony suggested that she was confident that she would succeed, and had no intention of changing her career path. However, the severe Gavron warning that Robin received in 2005 specified that she must find employment in any field in which she was qualified to work -- even if she did not want to work in that field. Given the nature of the warning, and Robin’s failure to pursue stable employment over the past two years, the court did not abuse its discretion in imputing income to her from her chosen career as an entertainer.
In support of her argument that her own testimony is insufficient to support the court’s imputation of income, Robin cites Schmir, supra, 134 Cal.App.4th 43. Schmir is distinguishable because the marital settlement agreement contained no “Gavron warning.” The appellate court’s decision that the trial court abused its discretion in terminating spousal support was based on its finding that “‘three weeks’ notice was clearly too short” for the former wife to find employment “without affording her a reasonable advance notice and opportunity to find gainful employment.” (Schmir, at p. 58.) The case does not support Robin’s argument that her own testimony was too speculative to support the court’s imputation of income. In re Marriage of Epstein (1979) 24 Cal.3d 76, 91, also cited by Robin on this point, involves a court’s decision to terminate jurisdiction and therefore is also inapplicable.
Robin next contends that the court improperly relied on the declaration of Gary’s vocational expert, Miller, in imputing income to Robin. She argues that Miller’s declaration was based on conjectural data rather than actual facts otherwise proved. In support of this argument, Robin relies on Roscoe Moss Co. v. Jenkins (1942) 55 Cal.App.2d 369, 379, in which the court noted that certain expert testimony should not have been placed before a jury due to a lack of foundation for the opinion. However, Robin does not claim that she objected to Miller’s testimony on the ground of lack of foundation, and she is not appealing any evidentiary rulings. Therefore we assume that the court properly found a sufficient foundation for Miller’s expert opinion.
Robin argues that Miller never met with Robin and based her opinion solely on data that was not specific to Robin. Robin cites no authority for her position that such specific data was required. Miller’s opinion contained research of the pay scales and likely earnings of actors similarly situated to Robin. And, while Miller never met with Robin, Miller reviewed letters from various talent and marketing agencies, as well as Robin’s teachers and coaches. The evidence found in Miller’s declaration, including opinion testimony indicating that Robin’s outlook for success was very high; that she had been called in for quite a number of auditions in 2006; that she is in an age range where there are many opportunities available; and pay scale information obtained from various sources, provided a sufficient basis for the court to impute income based on Robin’s earning capacity as an actor. (See In re Marriage of LaBass & Munsee, supra, 56 Cal.App.4th at pp. 1334-1335.)
Gary points out that Miller never met with Robin because of Robin’s refusal to undergo a vocational evaluation.
In addition, both parties reference a list, provided by Robin, of over one hundred jobs available to Robin during the first few months of 2007.
In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 993-994, supports this conclusion. There, the former husband provided evidence that his former wife had training and experience in the computer field; letters from employment agencies showing her capacity to earn; and letters from the former wife’s previous employers showing their satisfaction with her work. Despite the former wife’s argument that she had not worked for over four years and had three young children, the Court of Appeal affirmed the trial court’s imputation of income to her. In doing so, the court noted, “[a]s long as ability and opportunity to earn exist . . . the court has the discretion to consider earning capacity.” (Id. at p. 999.)
Robin argues that the potential acting jobs described in the record are “not proof of her ability to obtain consistent, full-time employment.” However, as the court repeatedly noted, despite the severe Gavron warning issued to her, Robin has chosen a career path that does not always provide a reliable source of income. The court stated: “There are other career paths that she is qualified for that she testified she did not want to work in, but would undoubtedly have provided a more reliable income stream.” In other words, Robin has essentially ignored the Gavron warning that her efforts to support herself must include “finding employment in the field(s) in which she is qualified to work, whether or not she wants to work in that field, and failure to do so may result in the court imputing income at the level at which she could be employed.” (Italics added.)
Shaughnessy provides authority for the trial court’s consideration of Robin’s career choice. In Shaughnessy, the former wife had been supported for eight years and had “‘continued in her floral business despite the fact[] that she now claims she nets only around $650 per month from the business. [The former wife] should have been aware that if the above is true, the floral business is not the means for her continued long term economic well being.’” (Shaughnessy, supra, 139 Cal.App.4th at p. 1234.) In affirming the trial court’s decision to lower the amount of her monthly spousal support, the Court of Appeal noted that “‘a supported spouse cannot make unwise decisions which have the effect of preventing him or her from becoming self-supporting and expect the supporting spouse to pick up the tab.’ [Citation.]” (Id. at p. 1238.)
Under the circumstances, and given the proof as to Robin’s ability and opportunity to find work, the trial court did not abuse its discretion in imputing income to her.
C. Length of marriage and Robin’s age
Robin argues that the court erred in failing to consider the length of marriage and Robin’s age. The Rolfes’ marriage lasted 27 years, and Robin was 57 years old at the time of the divorce. As noted above, the trial court did consider these factors, along with all of the other factors included in Family Code section 4320. As to the length of marriage, the court noted that their 27-year marriage was “a marriage of long-term duration pursuant to the Family Code.” In addition, the parties had been “separated approximately 5 years and [Gary] has paid support for those five years.” As to the age and health of the parties, the court noted “[T]here is no indication that the parties are in anything but good health, both are in their mid-to-late 50’s.”
Robin notes that the legislative history of Family Code section 4330, subdivision (b) “‘casts the “Gavron warning” in discretionary (“may”) language to accommodate the reality that in many marriages of long duration it would be unreasonable to put the burden on supported spouses to become self-sufficient just as they enter their ‘senior, non-income producing years.” . . .’” (Citing Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2007) ¶ 6:1034.4, citing Assem. Comrs. Rep. on Assem. Bill No. 391, 1999-2000 Reg. Sess.) However, Robin is not appealing the issuance of the Gavron warning contained in the original judgment of dissolution. In addition, Robin touted her age as advantageous to her acting career: “though [Gary] believes that my age is disadvantageous to me, he is wrong. . . . [E]veryone has heard the terms ‘the 50’s are the new 40’s, the 40’s are the new 30’s . . . .’ My timing on entering the entertainment industry is absolutely perfect, and I am so excited about it! . . . And because so many of the people who are new in entertainment are quite young, I find that when I am in showcases and classes, there are fewer actors in my age range. And casting directors and producers are always looking for new faces.” Thus, based on Robin’s own testimony, the trial court did not err in failing to consider Robin’s age and length of marriage to be detrimental to her potential earning capacity.
The cases cited by Robin on this point, In re Marriage of Hopkins (1977) 74 Cal.App.3d 591, 597; In re Marriage of Crobarger (1986) 178 Cal.App.3d 56, 60; In re Marriage of Brantner (1977) 67 Cal.App.3d 416; and In re Marriage of Morrison (1978) 20 Cal.3d 437, all involving marriages of long duration and former wives with limited skill and opportunities for financial independence, are distinguishable because, in contrast, Robin has training both as an actor and a life coach and considers her economic prospects from these two careers to be excellent.
IV. The court did not abuse its discretion in making the order effective January 1, 2007
Robin argues that the trial court erred in making its June 2007 order retroactive to January 1, 2007, absent evidence that Robin had earned income during the period of retroactivity.
As Robin admits, a trial court’s decision to make an order retroactive is within the court’s sound discretion. Here, the court indicated that Gary filed the OSC on December 1, 2006, as was contemplated by the original judgment of dissolution. That judgment of dissolution stated that the spousal support awarded therein would continue through November 30, 2006, at which point either party could file a request for modification without further change of circumstances. Thus, the court found that it was equitable to consider the modification order “current” as of January 1, 2007.
The absence of evidence of any actual income to Robin does not make the ruling erroneous. The court’s order was based on imputed, not actual, income. This distinguishes the present situation from West. In West, the court based its modification of a spousal support order on the former wife’s favorable earnings outlook. (West, supra, 152 Cal.App.4th at pp. 249-150.) Here, in contrast, the modification was based on income imputed to Robin, which in turn was grounded in a severe Gavron warning notifying her that such an imputation might occur if she did not become self-supporting. No abuse of discretion occurred.
V. The court did not abuse its discretion in ordering a future step-down
Finally, Robin argues that the court erred in ordering a future step-down in her monthly support beginning January 1, 2010, at which time Robin’s support is to be reduced to $3,500. Robin argues that there is no evidence in the record to support a reasonable inference that her needs will decrease or her income will increase. (Prietsch, supra, 190 Cal.App.3d at p. 656.) As discussed throughout this opinion, there was ample evidence -- most of it provided by Robin herself -- that she fully expected to find financial success in her careers as an actor and as a life coach. Miller’s declaration provided evidence of the wages that Robin could anticipate making in her acting career, and Robin attested to her potential income in the field of life coaching.
Robin cites Prietsch for the proposition that it is an abuse of discretion for a court to order a future step-down in spousal support based on speculation about the former wife’s future financial circumstances. In Prietsch, the speculation was related to an expected future inheritance, which the court labeled “conjectural.” (Prietsch, supra, at p. 659.) In contrast to the current matter, the future step-down provision was not justified by evidence that the former spouse would move closer to being able to completely support herself. (Ibid.)
As explained in West, the court’s step-down order does not prevent Robin from obtaining spousal support above the amount ordered after January 1, 2010. Instead, it operates to shift the burden to her to show that an alternative order is required. (West, supra, 152 Cal.App.4th at p. 248.)
No abuse of discretion occurred.
DISPOSITION
The order is affirmed. Respondent is awarded his costs of appeal.
We concur: BOREN, P. J., ASHMANN-GERST, J.