Opinion
B230385
12-23-2011
In re the Marriage of Lydia and Roland McGhie. LYDIA v. McGHIE, Plaintiff and Respondent, v. ROLAND W. McGHIE, Defendant and Appellant.
Robert D. McGhie for Defendant and Appellant. No appearance by Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Los Angeles County Super. Ct. No. BD528876
APPEAL from an order of the Superior Court of Los Angeles County. Hank Goldberg, Judge. Affirmed.
Robert D. McGhie for Defendant and Appellant.
No appearance by Respondent.
Appellant Roland McGhie (husband) appeals from the January 13, 2011 order awarding pendent lite spousal support to respondent Lydia McGhie (wife). Husband contends it was an abuse of discretion to award wife any temporary support because wife's separate property was sufficient to provide for her needs. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
At the time of the temporary spousal support order, wife was 89 and husband was 94 years old. When they were married on June 1, 1974, each had adult children from prior marriages. Before their marriage, husband owned a home in La Crescenta and a lot in Paradise Cove. In April 1975, husband sold his La Crescenta home and used the proceeds to build a home on the Paradise Cove property, which was completed in June 1976. Meanwhile, about a year after they were married, husband retired from the Department of Water and Power with a pension while wife continued working at a family business run by her sons. At about the same time (a year after they were married), wife purchased a home in Eagle Rock with her separate property.
In 1981, husband and wife executed a post-nuptial agreement that identified each spouse's separate property and the community's property. In 1982 or 1983, wife purchased a property in Glendale with her separate property (the Glenoaks property); husband executed a quitclaim deed acknowledging that he had no interest in the Glenoaks property. Wife used her monthly $810 social security payment to pay the expenses associated with the Glenoaks property, including property taxes, insurance and maintenance. Meanwhile, the couple lived in the Paradise Cove property and used husband's monthly $5,400 pension to pay their expenses. In 1987 or 1988, they moved back to Los Angeles and into the Glenoaks property. Husband initially rented out the Paradise Cove property but later sold it.
The agreement is not included in the record.
The marriage began having difficulties in 2008. Husband and wife gave different versions of the events. In wife's version, husband started demonstrating personality changes in 2008, and was diagnosed with Alzheimer's disease. In 2009, without wife's knowledge or consent, husband transferred about $60,000 out of community property bank accounts and certificates of deposit to his son, Ronald. After husband began acting violently towards her, wife could no longer live with him and husband moved in with his son.
In husband's version, towards the end of 2008, he asked wife for a guarantee that if she should die before him, he would have the right to stay in the Glenoaks property for a reasonable time. Wife denied the request and started calling husband "crazy" and "cheap." When husband told wife he intended to set up a joint account with Ronald to pay husband's burial expenses and for a place to live, if necessary, wife reacted by transferring funds from community accounts into accounts held in her name only. Wife also took husband's name off a car husband had purchased with his separate property. When husband confronted wife with his discovery that she had withdrawn $3,290.90 from their joint Wells Fargo Bank account and closed the account, wife told husband to leave and refused to speak to him. Wife falsely told husband's family that he had been diagnosed with Alzheimer's disease. In early May 2010, husband concluded that wife could not be trusted to manage their joint accounts so he began depositing his retirement income into a separate account to which wife did not have access. On June 14, 2010, wife called the police, and husband left the premises. The next day, wife had all of the locks changed so that husband could not re-enter. Husband has lived with Ronald and Ronald's wife in Chico, California ever since.
In July 2010, wife petitioned for dissolution of the marriage. In October 2010, the court issued an Order to Show Cause upon wife's application seeking, among other things, temporary monthly spousal support of $2,000. Husband opposed the request on the grounds that Family Code section 4322 precluded such an award because wife's separate property was sufficient for her support.
Family Code section 4322 provides: "In an original or modification proceeding, where there are no children, and a party has or acquires a separate estate, including income from employment, sufficient for the party's proper support, no support shall be ordered or continued against the other party."
All further undesignated statutory references are to the Family Code.
Husband and wife each filed an Income and Expense Declaration and at the OSC hearing each submitted a Schedule of Assets and Debts. In her Income and Expense Declaration, wife claimed an average monthly income of $1,117 and monthly expenses of $3,156. In his Income and Expense Declaration, husband claimed a monthly income of $6,205.87, and monthly expenses of $4,739. Based on the parties' respective Income and Expense Declarations, the guideline support payment calculated by the Dissomaster was $1,605 per month to wife.
In their respective Schedule of Assets and Debts, husband and wife each listed the Glenoaks property, valued at $939,999. Wife maintained it was her separate property while husband claimed a community property interest in it based on his "work and effort involved in improving the residence and paying for improvements and maintenance during the marriage . . . ." Each spouse also claimed a community interest in various bank accounts, stocks and bonds that the other spouse identified as separate property in his or her Schedule of Assets and Debts. And husband claimed a community property interest in wife's family business.
At the December 13, 2010 support hearing, husband urged the court to take into account in calculating any support payment the income potential of the Glenoaks property if wife took out a reverse mortgage on it, as well as the $150,000 in liquid assets identified on wife's Schedule of Assets and Debts. Wife countered that husband's position on temporary support was inconsistent with his claim that most of the assets wife claimed as her separate property, including the Glenoaks property, were community assets and not wife's separate property. Wife also pointed out that husband was confusing the different standards for permanent spousal support and temporary spousal support. The court agreed with wife, commenting, ". . . I think we really have to sort out who has what before we can make a final determination, which is exactly why we have preliminary and final spousal support awards." The court concluded that until it was determined whether the disputed assets were separate or community property, it was not possible to determine whether wife's separate property was sufficient to meet her needs. Observing that the purpose of temporary spousal support was to preserve the status quo until such determination could be made, the trial court ordered husband to pay wife temporary spousal support in the guideline amount of $1,605 per month, commencing December 1, 2011. The court reserved jurisdiction to retroactively re-characterize the temporary support payments as distributions of community property. The order was filed on January 13, 2011. Husband timely appealed.
On April 7, 2011, this court granted husband's unopposed motion for preference. Husband filed his Opening Brief on July 28, 2011. Wife did not file a Respondent's Brief. On October 4, 2011, we notified the parties that the matter would be decided on the record and appellant's (i.e. husband's) opening brief. (Cal. Rules of Court, rule 8.220(a)(2).)
DISCUSSION
A. Standard of Review
It is well settled an award of temporary spousal support lies within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. (§ 3600; In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1327 (Wittgrove); In re Marriage of Murray (2002) 101 Cal.App.4th 581, 594 (Murray); In re Marriage of Dick (1993) 15 Cal.App.4th 144, 165 (Dick); In re Marriage of Winter (1992) 7 Cal.App.4th 1926, 1932 (Winter); In re Marriage of McNaughton (1983) 145 Cal.App.3d 845 (McNaughton); see also 11 Witkin, Summary of Cal. Law (9th ed. 1990) Husband and Wife, § 191.)
Husband relies on In re Marriage of Terry (2000) 80 Cal.App.4th 921 (Terry), for the proposition that the appropriate standard of review in this case is de novo because whether property is separate or community under section 4322 is a legal question where "the relevant facts are essentially undisputed or beyond debate." The initial flaw in husband's argument is that the relevant facts in this case are not undisputed. In Terry, the appellate court held that the question of whether section 4322 applies "is a legal conclusion that an estate reasonably could, or could not, generate sufficient income to provide for a spouse's proper support, with legal ramifications for both parties. Thus, our standard of review is de novo." The Terry court distinguished McNaughton, supra, 145 Cal.App.3d at page 850, in which the court held that "whether an estate is sufficient for one's proper support is a fact question for the trial court[,]" the court pointing out that the historical facts were undisputed in Terry but not in McNaughton.
The court in Terry held that section 4322 makes denial of permanent support "mandatory if the sufficiency threshold is met, irrespective of circumstances the court would otherwise consider under [other spousal support provisions]." (Terry, supra, 80 Cal.App.4th at p. 928.)
Here, the facts are not undisputed. For example, husband maintains throughout his Opening Brief that wife has separate property assets of over $1 million. He argues that the Glenoaks property has income potential in the form of a reverse mortgage. But in the trial court husband disputed that many of the assets that wife identifies on her Schedule of Assets and Debts are her separate property. Most significantly, husband maintained he has a community property interest in the Glenoaks property, in wife's family business, and in virtually all the accounts wife identifies as her separate property. Obviously, if wife has fewer separate assets, her ability to generate income from those assets is reduced. Because the relevant facts are disputed, husband has failed to establish that it would be appropriate to deviate from the usual abuse of discretion standard in this case.
B. Award of Temporary Spousal Support Award Was Not An Abuse of Discretion
Husband contends it was an abuse of discretion to award wife temporary spousal support. He argues that Family Code section 4322 precluded the temporary support order because wife had separate property sufficient for her support. Husband's contention fails for two reasons. First, section 4322 does not apply to a temporary support award which is governed by section 3600. Second, even assuming section 4322 applied generally, for many of the same reasons we discussed in the preceding section, husband has not established that wife has separate property sufficient for her support.
1. Section 4322 Does Not Apply to an Award of Temporary Spousal Support
We begin with the observation that "[a]wards of temporary spousal support do not serve the same purposes, nor are they governed by the same procedures, as awards for permanent spousal support." (Dick, supra, 15 Cal.App.4th at p. 166.) The court in In re Marriage of Tong and Samson (2011) 197 Cal.App.4th 23, 27, recently explained that temporary spousal support is used "to maintain the living conditions and standards of the parties in as close to the status quo position as possible pending trial and the division of their assets and obligations" whereas permanent spousal support "provide[s] financial assistance, if appropriate, as determined by the financial circumstances of the parties after their dissolution and the division of their community property." (Id. at p 27, internal quotations omitted.) As Dick, supra, at page 166 explained " 'The manifest purposes of pendente lite allowances to a wife are to enable her to live in her accustomed manner pending the disposition of the action . . . .' 'On the other hand the object of permanent allowance is to make an equitable apportionment between the parties.' "
Temporary spousal support is governed by section 3600; permanent support is governed by section 4330 and other statutes in Division 9, Part 3 of the Family Code. Section 4330 provides: "In a judgment of dissolution of marriage . . . of the parties, the court may order a party to pay for the support of the other party an amount, for a period of time, that the court determines is just and reasonable, based on the standard of living established during the marriage, taking into consideration as provided in Chapter 2 (commencing with Section 4320)." (§ 4330, subd. (a).) Other factors that the court is required to consider in awarding permanent support under section 4330 are a party's ability to support oneself by utilizing separate property (§ 4322) and whether there is evidence that the party seeking support has engaged in domestic violence (§ 4325).
In contrast to permanent support under section 4330, an award of temporary support does not require consideration of numerous statutory factors. Section 3600 which is found in a different part of Division 9 of the Family Code provides: "During the pendency of any proceeding for dissolution of marriage . . . the court may order . . . the husband or wife to pay any amount that is necessary for the support of the wife or husband, consistent with the requirements of subdivisions (i) and (m) of Section 4320 and Section 4325 . . . ." Thus, the factors to be considered in awarding temporary support are the supported party's needs, the supporting party's ability to pay, and whether there has been any history of domestic violence. (In re Marriage of Tong and Samson, supra, 197 Cal.App.4th at p. 29; In re Marriage of MacManus (2010) 182 Cal.App.4th 330, 335 (MacManus); Wittgrove, supra, 120 Cal.App.4th at p. 1327.)
Section 4320, subdivisions (i) directs the court to consider any history of domestic violence between the parties and section 4320, subdivision (m) directs the court to consider whether an abusive spouse's criminal conviction should reduce or eliminate spousal support in accordance with section 4325, which establishes a rebuttable presumption that neither temporary nor permanent spousal support should be made to a spouse convicted of domestic violence within five years before the filing of the dissolution action.
We find significant that the legislature has chosen to include domestic violence as one of the factors in calculating the amount of temporary support in section 3600 but has not included the other factors set out in section 4320 or the separate property factor in section 4322, all of which are applicable only to permanent support orders. MacManus, supra, 182 Cal.App.4th at pages 335-337, chronicled the significant amendments in the Family Code in 2001-2002 that give support to our view that the exclusion of these other factors was intentional. MacManus concluded: "In 2002, [section 3600] was amended to clarify that the trial court need consider only the history of domestic violence, not all the factors in section 4320. (See Historical and Statutory Notes, 29E West's Ann. Fam. Code (2004 ed.) foll. § 3600, p. 461.)" (MacManus, supra, at p. 336, fn. 5; see also Murray, supra, 101 Cal.App.4th at p. 595, fn. 10 [references to §§ 4320 and 4325 added to section 3600 in 2001, do not require the court "to conduct the same sort of section 4320 analysis as is required in awarding permanent support. (Hogoboom & King, Cal. Practice Guide: Family Law, [The Rutter Group 2002] ¶ 5:150a, pp. 5-59 to 5-60.)"].)
To recap: (1) section 3600 expressly directs the trial court to consider any history of domestic violence in making an award of temporary spousal support and (2) section 4325, dealing with domestic violence, was added and expressly made applicable to both temporary and permanent spousal support. By contrast, section 4322 -the separate property statute at issue here - does not state expressly that it applies to temporary support, and section 3600 - the temporary support statute - does not refer to section 4322 at all. "[I]t is an accepted rule of statutory construction that 'when the Legislature "has employed a term or phrase in one place and excluded it in another, it should not be implied where excluded." [Citations.]' [Citation.]" (Dick, supra, 15 Cal.App.4th at p. 166.)
In Dick, the Court of Appeal concluded that the differences in the rules for retroactivity of permanent versus temporary support orders reflected intentional legislative choices. "If the Legislature had wanted to limit the retroactivity of temporary spousal awards to the date on which the order to show cause was filed, as it had [for permanent support] in Civil Code section 4801, it could have expressly so provided, but since it did not, we will not imply such a limitation." (Dick, supra, 15 Cal.App.4th at p. 166.) Likewise, if the Legislature had wanted to make section 4322 applicable to temporary spousal support awards under section 3600, it could have expressly so provided as it did with the domestic violence factors in section 4320 and section 4325. The Legislature did not do so and we decline to imply such application.
Our conclusion that section 4322 is inapplicable to awards of temporary spousal support is consistent with the rule that a temporary spousal support order, which is usually obtained soon after the filing of the action, is not a final adjudication of any of the issues in the litigation. (In re Marriage of Gruen (2011) 191 Cal.App.4th 627, 637; In re Marriage of Askmo (2000) 85 Cal.App.4th 1032, 1038.) As the trial court correctly concluded, at this early stage in the dissolution proceedings, whether assets are separate or community property has not been adjudicated. Application of section 4322 to temporary support would by necessity require this issue to be adjudicated prematurely.
2. Baldwin is Inapplicable
Husband relies on Baldwin v. Baldwin (1946) 28 Cal.2d 406 (Baldwin), for the proposition that section 4322 applies to temporary support awarded pursuant to section 3600. In Baldwin, our Supreme Court affirmed the trial court's finding that the wife "possessed sufficient means with which to support herself and was not entitled to an allowance for either temporary or permanent support from the separate estate of [the husband]." (Id. at p. 413) We conclude for two separate reasons that Baldwin, which relied on former Civil Code section 142, is not authority for applying section 4322 to section 3600.
First, the quoted statement from the opinion was dicta; Baldwin was a permanent support case, so the court's reference to temporary support was not necessary to the court's decision.
Second, when Baldwin was decided in 1946, former Civil Code section 137 governed awards of permanent and pendente lite support as well as attorney fees. Regarding temporary support, that statute gave the court discretion "to pay as alimony any money necessary to enable the [other spouse] to support [him or herself] . . . or to prosecute or defend the action." Former Civil Code section 142 read in part: "Where there are no children, and either party has a separate estate sufficient for his or her proper support, no allowance shall be made from the separate estate of the other party." Both statutes were in Chapter 2, Article 4 of the Civil Code. It was under this statutory scheme that the court in Baldwin affirmed denial of permanent support citing section 142.
In 1951, Civil Code section 137 was amended such that it applied to permanent support only; sections 137.2 and 137.3 were added regarding temporary support and attorney fees, respectively. (Stats. 1951, ch. 1700 §§ 1, 3, 4.) Civil Code section 142 was not changed.
But in 1969, The Family Law Act was adopted (Stats. 1969 ch. 1608, § 8, p. 3314), and under the new act, temporary and permanent spousal support were set out in different statutes (former §§ 4357, 4801, 4806). In 1994, the provisions of the Civil Code that comprised the Family Law Act were replaced by our present Family Code. (Murray, supra, 101 Cal.App.4th at p. 594, fn. 9.) Current sections 3600, 4322 and 4330 are all found in Division 9, "Support." But section 3600 is found in Part 1 "Definitions and General Provisions," Chapter 4 entitled "Spousal Support During Pendency of Proceeding." Sections 4330 and 4322 are found in Part 3 entitled "Spousal Support," Chapter 2 entitled "Factors to be Considered in Ordering Support."
We conclude that as a result of the substantial differences between the statutory scheme when Baldwin was decided and the current statutes, Baldwin is not authority for the proposition that section 4322 applies to temporary support orders made pursuant to section 3600.
3. Husband Has Not Shown That Wife Has Separate Property Sufficient For Her Own Support
Even assuming for the sake of argument that section 4322 applies to a temporary support order, husband has not shown that wife has sufficient separate property to support herself. Husband contends the trial court erred by placing the burden of proof on him. He is incorrect.
"[A] party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting." (Evid. Code § 500; cf. In re Marriage of Mehlmauer (1976) 60 Cal.App.3d 104 [parent seeking modification of child custody order has burden of proof that the modification would be in the child's best interests].) "The burden of producing evidence as to a particular fact is on the party against whom a finding on that fact would be required in the absence of further evidence." (Evid. Code, § 550, subd. (a).)
Here, wife sought temporary spousal support pursuant to section 3600. Wife's needs and husband's ability to pay were the facts essential to wife's claim. Accordingly, wife had the burden of proving these facts. Wife met her burden with the production of hers and husband's Income and Expense Declarations. Husband's claim that section 4322 operated to preclude wife from obtaining temporary support was, for all intents and purposes, a defense to wife's claim for support. As such, husband had the burden of proving the existence or nonexistence of the facts essential to that defense. In other words, husband had the burden of proving that wife had sufficient separate property for her own support. Husband did not meet that burden.
As we have already explained, husband claims a community property interest in most of the property wife identified as her separate property on her Schedule of Assets and Debts. In particular, he claims a community property interest in the Glenoaks property which comprises the bulk of wife's claimed separate property.
In Winter, supra, 7 Cal.App.4th 1926, is instructive. In that case, the husband argued that the temporary support award violated former Civil Code section 4806 (precursor to current section 4322), because the wife received community funds as an offset against the community funds the husband spent on a new house; these funds, the husband argued, were sufficient for the wife's support. The appellate court affirmed the temporary support order, reasoning that the funds received by the wife "must continue to be characterized as community property until the final property division, at which point both parties will be credited with community funds used by or distributed to the other. Any other interpretation would contravene one of the basic purposes of temporary support, which is to preserve community assets pending trial. [Citation.]" (Id. at pp. 1934-1935; see also In re Marriage of Shaban (2001) 88 Cal.App.4th 398, 408.)
In Winter, the parties did not dispute application of former Civil Code Section 4806 to a temporary support award. Therefore, the court did not consider that issue. A decision "is not authority for a proposition not therein considered." (Flannery v. Prentice (2001) 26 Cal.4th 572, 580-581.)
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Here, husband has not established that wife has sufficient separate property to support herself because husband continues to claim a community property interest in the property. If husband prevails on his claim, wife would not have the $1 million separate property estate that husband posits. Under these circumstances, husband has not established that wife has sufficient separate property assets to support herself.
4. No Abuse of Discretion In Awarding Wife Temporary Support
Husband finally contends it was an abuse of discretion to award temporary support based on the parties' respective incomes. We disagree.
In fixing an amount for temporary support, "the court may properly consider the 'big picture' concerning the parties' assets and income available for support in light of the marriage standard of living. [Citation.] . . . 'Ability to pay encompasses far more than the income of the spouse from whom temporary support is sought; investments and other assets may be used for . . . temporary spousal support . . . . [Citations.]' [Citation.] Trial courts may properly look to the parties' accustomed marital lifestyle as the main basis for a temporary support order. [Citations.]" (Wittgrove, supra, 120 Cal.App.4th at p. 1327.) In Winter, supra, 7 Cal.App.4th at p. 1933, the court found "no problem with the trial court's use of standard guidelines, based solely on income, for temporary support." It noted that, if the parties were still married, the wife would still be enjoying the benefits of the husband's substantially higher income. (Ibid.)
Here, the evidence established that during the marriage, husband, whose pension appeared to have been the parties' primary source of income, paid the couple's living expenses. This was the accustomed marital lifestyle and it was a sufficient basis for the trial court's determination of a temporary spousal support award to wife.
DISPOSITION
The order for temporary spousal support is affirmed. Wife shall recover her costs.
RUBIN, J.
WE CONCUR:
BIGELOW, P. J.
FLIER, J.