Marriage of Mumma and Rosenfield CA1/3

Filed 9/27/13 Marriage of Mumma and Rosenfield CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

In re the Marriage of REBECCA MUMMA and DON ROSENFIELD.

REBECCA MUMMA, Appellant, v. A134292 DON ROSENFIELD, (San Francisco County Appellant. Super. Ct. No. FDI-04-757877)

Rebecca Mumma appeals from a November 22, 2011, order denying her request for a downward modification of spousal support in favor of Don Rosenfield. She asserts the court erred as a matter of law by refusing to consider her loss of tax deductions after the sale of the marital residence as a factor impacting her ability to pay spousal support. We agree with Mumma, and accordingly, we shall reverse and remand the matter for further proceedings.1 FACTUAL AND PROCEDURAL BACKGROUND2 Mumma and Rosenfield were married on November 29, 1990 and separated in October 2004. On September 19, 2006, the parties entered into a stipulated judgment of

1 In light of our determination, we dismiss as moot Don Rosenfield‟s cross-appeal from so much of the November 22, 2011, order as denied his request for attorney fees. 2 We set forth only those facts necessary to resolve the issue raised on Mumma‟s appeal.

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dissolution that incorporated a marital settlement agreement (the “MSA”), outlining each party‟s respective property interests and support obligations. The MSA required Mumma to pay support to Rosenfield in the base sum of $2,350 per month. The monthly sum was modifiable under the following circumstances: “The parties agree [Mumma] may seek a downward modification of spousal support upon a showing of changed circumstances. However, under no circumstances shall any court have jurisdiction to modify spousal support upward or in any way increase the amount of spousal support payable by [Mumma] to [Rosenfield]. The parties agree that the sale or transfer of the former family residence. . . shall constitute a change of circumstances sufficient for [Mumma] to request a downward modification of support.” On May 14, 2010, Mumma filed a motion for downward modification of spousal support based on her change in income, which was opposed by Rosenfield. In support of her motion, Mumma informed the court the marital residence was “in escrow and scheduled to close escrow shortly.” The house sale closed on June 1, 2010. A superior court commissioner assigned to the case held a hearing on August 26, 2010, and later presided at a judicial settlement conference on October 7, 2010, after which the parties stipulated that a decision would be rendered on all issues presented by the parties‟ pleadings. In the commissioner‟s written order filed on November 30, 2010, Mumma‟s request for a downward modification of spousal support retroactive to May 2010 was denied because she had failed to demonstrate that a substantial change of circumstances beyond her control had caused a decrease in her ability to pay the current support order. In so ruling, the commissioner commented that Mumma had not provided sufficient documentation regarding her current pay and benefits, and her income and expense declaration “was stale, given the new status of the sale of the house and the old mortgage figures no longer apply.” On December 15, 2010, Mumma filed a motion for reconsideration, which was opposed by Rosenfield. The commissioner denied the motion for reconsideration, but ruled that Mumma could file a new motion. However, the commissioner advised Mumma that she would be required to meet the legal standard for a downward