Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, Super. Ct. No. VD049166, Daniel S. Murphy, Judge.
Friedman & Friedman, Ira M. Friedman and Gail S. Green for Defendant and Appellant.
Law Offices of Monica R. Molina and Monica R. Molina for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendant Fred Neufeld appeals from an order modifying a previous spousal support order. He contends there is no evidence to support the order. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
The parties married in 1980 and separated in 2001. They had two children. In March 2002, Griselda filed a petition for dissolution of marriage.
As do the parties, for ease of reference we refer to the parties by their first names.
According to Griselda’s income and expense declaration, she was 52 years old and a homemaker. She had completed two years of college. In 1987, the family moved to Boston while Fred obtained a law degree from Harvard University. While he was in school, she worked as a bank teller earning $800 per month. In 1990, they moved back to California and purchased a home in Granada Hills. Griselda stopped working in order to care for the parties’ home and children. Their home suffered major damage in the 1994 Northridge earthquake. They moved in with relatives, and Fred allowed the home to go into foreclosure. They eventually rented another home.
After their youngest child left home to attend college, Fred moved out. Griselda moved into her mother’s home. She had $4,500 in monthly expenses. She had no monthly income other than $2,000 per month that Fred had been voluntarily providing to her.
According to Fred’s income and expense declaration, he was 54 years old. He was employed as an attorney. He had $20,800 gross monthly earnings and $13,678 in net monthly earnings, which included an annual bonus. His monthly expenses were $11,214. This included approximately $5,450 per month for the parties’ children’s college expenses.
The court ordered Fred to pay Griselda $3,529 in temporary spousal support. This was based on the parties’ stated incomes, with Fred given credit for monthly health insurance payments of $467 and payments for the children’s education of $5,450. Additionally, the court ordered Fred to pay Griselda 32.5 percent of his bonus. Griselda challenged this order on the ground it left the parties with significantly different standards of living. After reconsideration, the court ordered temporary spousal support of $4,830, which included credit of $4,133 per month for the children’s education expenses.
The court entered a judgment of dissolution on February 6, 2003. The parties stipulated to the court’s findings and orders. The judgment stated that it reflected their “mutual wish and desire . . . to irrevocably adjust and determine forever all legal obligations of any nature which may exist with respect to one another and by reason of their marriage, and to fully and completely resolve any and all issues relating to support . . . .” The judgment also stated “that the parties have acknowledged that the provisions of this Judgment are fair and reasonable.”
The court ordered Fred to pay Griselda spousal support of $4,000 per month, continuing until Griselda’s death, marriage or further order of the court. The judgment stated that this order was based on the parties’ income and expense declarations.
On July 24, 2006, Griselda filed an order to show cause for modification of spousal support. In her supporting declaration, Griselda stated that in arriving at the amount Fred would pay in spousal support, Fred “was given credit” for the costs of their children’s education. The children had graduated from college and Fred no longer paid their expenses. Additionally, Fred had a higher income than stated in his original income and expense declaration, while Griselda was unemployed and had “significantly high living expenses.”
Fred opposed the order to show cause on the grounds Griselda had failed to show a material change of circumstances justifying modification of spousal support. He also argued that the preprinted portion of the judgment contained a Gavron warning that the parties were required to make reasonable efforts to become self-supporting, and Griselda had made no effort to do so. Finally, he claimed that Griselda’s failure to file a new income and expense declaration was grounds for denial of the order to show cause.
In re Marriage of Gavron (1988) 203 Cal.App.3d 705, 711 states that “it is in the best interests of both spouses and society in general that the supported spouse become self-sufficient.” The judgment states: “NOTICE: It is the goal of this state that each party shall make reasonable good faith efforts to become self-supporting as provided for in Family Code section 4320. The failure to make reasonable good faith efforts may be one of the factors considered by the court as a basis for modifying or terminating spousal support.”
Fred submitted a declaration and a new income and expense declaration. According to Fred’s declarations, his monthly income had increased from $20,800 to $23,750. He also received annual bonuses, fluctuating between $25,000 and $100,000. For 2005, he received $63,000. He received an additional $39,000 in April 2006.
According to Fred’s declarations, his monthly expenses also had increased. He previously paid $1,875 per month for rent. Since then, he had purchased a house and was paying $5,270 in house-related expenses. Additionally, he assisted his children and grandchildren with their expenses, paying an average of $3,000 per month. He paid Griselda the court-ordered spousal support of $4,000 per month plus $312 from his pension, plus an additional approximately $250 per month.
Griselda filed a new income and expense declaration on October 26, 2006. It showed monthly income of $4,312 from Fred. It also showed monthly expenses of $9,740 identified as proposed needs, rather than actual expenses. However, the monthly expenses were added incorrectly and actually totaled $6,180.
The hearing on Griselda’s order to show cause was continued. On May 21, 2007, Fred moved to strike portions of Griselda’s declaration as speculative, lacking foundation and vague. These portions included her statement that in arriving at the amount of spousal support to be awarded in the judgment, the court credited Fred with the amounts he paid for their children’s education; Fred no longer paid for the children’s education; Fred earned a significantly higher income; and Griselda had significantly high living expenses.
At the same time, Fred filed a supplement to his opposition to the order to show cause. He again claimed that Griselda had made no effort to become self supporting. He pointed out that a vocational evaluation of Griselda had been conducted. It showed that Griselda had several options for employment, with or without additional education.
Specifically, it showed that Griselda could qualify to work part-time as an in-home caregiver for her mother at $9 per hour and work part-time as a bank teller for $11 to $14 per hour. A two-month course would qualify her to work as a certified nursing assistant. A one-year certificate program would qualify her to work as a licensed vocational nurse for approximately $18 per hour or $35,000 per year.
On July 3, 2007, the trial court held a hearing on Griselda’s order to show cause. It overruled Fred’s objection to Griselda’s statement that in arriving at the amount of spousal support to be awarded in the judgment, the court credited Fred with the amounts he paid for their children’s education. It sustained the other two objections.
The court observed that it appeared that no evidence was ever introduced as to the marital standard of living in connection with the stipulated judgment. Griselda’s counsel acknowledged that was the case. The court asked what the parties’ standard of living was during the marriage. It asked whether they owned a house. Counsel said they did, but it went into foreclosure. Fred interjected that they did not own a house at the time of the dissolution. The court then asked if the parties took trips. Griselda said they did. The court then asked for evidence regarding the standard of living.
Fred offered to testify as to the marital standard of living. Griselda’s counsel then stated that the parties traveled three to four times a year. Counsel stated that Griselda recalled trips to Washington, D.C., Mexico and New York, as well as camping trips. Griselda also purchased jewelry and wore it to functions. Counsel characterized the parties’ standard of living as “upper middle class. They lived in Northridge at that time and in a[] higher end community . . . .” The court then discussed with counsel the question whether there had been a material change of circumstances. The discussion included the original judgment, the parties’ income and expense declarations and the vocational evaluation.
Following argument, the court found “the material change of circumstances justifies a modification of spousal support. And the court finds that when you factor in the 4,320, that the initial award was insufficient to cover the reasonable needs of [Griselda]. And also that the reasonable costs for satisfying her needs increased from the time judgment was entered to now.”
The court also found “that the parties did have an upper middle class standard of living.” It noted that they lived in an affluent area, were able to sent their children to good colleges, traveled, had jewelry and were able to do things “that were above what the normal middle class . . . family is able to afford and do.”
The court found that Griselda had limited marketable skills, had been out of the workforce for a long time and had limited ability to support herself. It found Fred had the ability to pay. Additionally, the parties’ marriage was of long duration. The court granted Griselda’s request for modification of the spousal support order. It ordered Fred to pay Griselda $7,600 per month, continuing as required by law or until further court order.
On August 27, 2007, Fred filed a motion for reconsideration (Code Civ. Proc., § 1008) of the trial court’s order. While the motion was pending, however, Fred filed the instant appeal from the order.
DISCUSSION
We review an order modifying spousal support for abuse of discretion. (In re Marriage of Rising (1999) 76 Cal.App.4th 472, 478.) Discretion is abused when the order exceeds the bounds of reason, when it can fairly be said that no reasonable judge would have made the same order under the circumstances. (In re Marriage of Bower (2002) 96 Cal.App.4th 893, 898-899; In re Marriage of Smith (1990) 225 Cal.App.3d 469, 480.) An abuse of discretion will be found where there is no substantial evidence to support the order. (In re Marriage of McCann (1996) 41 Cal.App.4th 978, 982-983.)
Fred contends the trial court abused its discretion in modifying the spousal support order for a number of reasons. He first claims an abuse of discretion based on the lack of evidence to support the court’s findings.
A party seeking modification of a spousal support order has the burden of showing a material change of circumstances since the previous order. (In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 575; In re Marriage of McCann, supra, 41 Cal.App.4th at p. 982.) “Otherwise, dissolution cases would have no finality and unhappy former spouses could bring repeated actions for modification with no burden of showing a justification to change the order. Litigants ‘“are entitled to attempt, with some degree of certainty, to reorder their finances and life style [sic] in reliance upon the finality of the decree.”’ [Citations.] Absent a change of circumstances, a motion for modification is nothing more than an impermissible collateral attack on a prior final order. [Citation.]” (In re Marriage of Smith, supra, 225 Cal.App.3d at p. 480.)
A material change in circumstances since the previous order “may consist solely of an increase in the supporting spouse’s ability to pay, but if that is the only change, then to obtain an increase in support there must also be a showing that the amount of support previously ordered had not been adequate to meet the supported spouse’s reasonable needs at that time.” (In re Marriage of Smith, supra, 225 Cal.App.3d at pp. 482-483; In re Marriage of Hopwood (1989) 214 Cal.App.3d 1604, 1607.) Fred contends the trial court abused its discretion in modifying spousal support, in that the only material change in circumstances was his ability to pay, and Griselda introduced no evidence to show that the amount of spousal support previously ordered was inadequate to meet her needs at that time.
Griselda’s order to show cause was based on the increase in Fred’s income, including the fact that he no longer had to pay the children’s college expenses. It was not based on the fact that the original spousal support order was insufficient to meet her needs. In her supplemental brief, Griselda argued that the prior spousal support order was insufficient to meet her needs at the time it was made. She included no supporting declaration or other evidence to that effect, however. She did not testify at the hearing on her order to show cause.
The record shows that, at the time Griselda filed her original income and expense declaration, she claimed monthly expenses of $4,500. She was awarded spousal support in the amount of $4,000 per month. She also was awarded Fred’s pension, which totaled $312 per month. Thus, the record shows Griselda was awarded almost all of the amount she claimed as monthly expenses. It does not support a finding that the original spousal support order was insufficient to meet Griselda’s needs.
A supported spouse seeking an upward modification of spousal support “premised on the fact the former spouse is earning more now than at the time of the underlying order, must ‘establish by credible evidence that [the] . . . standard of living at the time separation of the parties . . . was higher than that provided by the prior award . . . .’ [Citation.]” (In re Marriage of Hopwood, supra, 214 Cal.App.3d at pp. 1607-1608.)
As Fred points out, some of the “evidence” on the parties’ marital standard of living, on which the trial court relied, was not evidence. It was representations by Griselda’s counsel at the hearing on the order to show cause. This included representations regarding vacations the parties took, jewelry Griselda purchased, and that the parties maintained an “upper middle class” lifestyle in a[] higher end community.”
“It is axiomatic that the unsworn statements of counsel are not evidence.” (In re Zeth S. (2003) 31 Cal.4th 396, 414, fn. 11; see also Evid. Code, § 140.) The statements of Griselda’s counsel therefore could not provide “‘credible evidence that [the] . . . standard of living at the time of separation of the parties . . . was higher than that provided by the prior award . . . .’ [Citation.]” (In re Marriage of Hopwood, supra, 214 Cal.App.3d at pp. 1607-1608.)
As the trial court noted at the beginning of the hearing on the order to show cause, there was no evidence introduced on the marital standard of living in connection with the original judgment. Inasmuch as there was no evidence as to the marital standard of living at the time of the original judgment, there is no substantial evidence that the original spousal support award was insufficient to meet Griselda’s needs at the time. Griselda thus failed to meet her burden of establishing a material change of circumstances based on Fred’s increased income alone. (In re Marriage of Smith, supra, 225 Cal.App.3d at pp. 482-483; In re Marriage of Hopwood, supra, 214 Cal.App.3d at pp. 1607-1608.) In the absence of the requisite showing, the trial court abused its discretion in granting Griselda’s request for an upward modification of spousal support. (In re Marriage of McCann, supra, 41 Cal.App.4th at pp. 982-983.)
In light of this conclusion, we need not address the other bases on which Fred contends the trial court abused its discretion in granting Griselda’s request.
We briefly address Griselda’s arguments in support of her claim that there was no abuse of discretion. She argues that the trial court properly considered the factors set forth in Family Code section 4320, properly considered Fred’s bonuses and the marital standard of living. As previously stated, there was no admissible evidence as to the marital standard of living. The Family Code section 4320 factors and Fred’s bonuses notwithstanding, Griselda failed to meet her threshold showing that the original spousal support award was inadequate to meet her needs at the time. The trial court therefore had no basis on which to modify spousal support. (In re Marriage of Hopwood, supra, 214 Cal.App.3d at pp. 1607-1608.)
Family Code section 4320 lists the factors the trial court must consider in ordering or modifying an award of spousal support. (See In re Marriage of Bower, supra, 96 Cal.App.4th at p. 899.)
Griselda also argues that the original spousal support award took into consideration that Fred was paying for the children’s education, and the fact that he no longer had to pay those expenses was a material change in circumstances. She adds that the court has no authority to require parents to support their adult children, and subsidies for adult children cannot be considered in fixing spousal support. Whether or not the original spousal support award took into account the amounts Fred paid for the parties’ adult children’s education, Griselda agreed to the award; she stipulated to its entry. She therefore has no basis for complaint. (In re Marriage of Smith, supra, 225 Cal.App.3d at p. 480.)
DISPOSITION
The order is reversed. Fred is to recover his costs on appeal.
We concur: PERLUSS, P. J., ZELON, J.