In Re Marriage of Holmgren

California Court of Appeal Jul 16, 1976 No. Civ. 38054Published

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Holding. The court held that the trial court abused its discretion by failing to reserve jurisdiction over spousal support after a long-term marriage and by failing to rule on the wife's request for attorney's fees, while affirming the order to sell the community residence.

Issues

Did the trial court abuse its discretion by terminating spousal support without reserving jurisdiction?
Was the order to sell the community residence to effect an equal division of property an abuse of discretion?
Did the trial court err by failing to rule on the wife's application for attorney's fees and costs?

Disposition. Affirmed in part, reversed in part, and remanded.

Quotations verified verbatim against the opinion

“after a lengthy marriage a retention of jurisdiction to modify spousal support should be the norm and that the burden of justification is on the party seeking termination.”

“It is clear that a court’s power under Civil Code section 4800 must include the power to order the sale of the parties’ residence when it constitutes the major portion of the community property”

[871]

Opinion

THE COURT.

Mary J. Holmgren (hereinafter “wife”) appeals from portions of a decree of marital dissolution.

The parties were married on November 19, 1949, and separated in June 1970. They have two children, one of whom resides with the wife.

At the time of trial the wife’s age was 48. She had no occupation, little apparent income and considerable debts. She testified that she suffered from several physical ailments and was also under the care of a psychiatrist. Since 1970 she has been studying as a part-time student, receiving a high school diploma and taking college-level courses. She estimated that she. would require at least two and a half years to complete junior college. Shortly after the separation in 1970 the wife sought work through an employment agency; it was recommended that she continue her education. She had apparently made no other efforts aimed at employment, believing that without additional education she would be unable to find “suitable” work.

The husband is a brewery employee, earning a gross monthly income of $1,178 with $334 in monthly deductions; he also receives a monthly $59 government disability pension.

The community property includes a union pension trust valued at $1,344, two life insurance policies—one on the wife’s life with a surrender value of $617 and one on the husband’s life with a surrender value of $3,825—and a house valued at $44,000 in which th¿ community equity is $39,883. The husband waived any interest in household furnishing and in life insurance policies on each of his children.

The wife appears to contend in a brief prepared in propria persona that the trial court abused its discretion in not reserving jurisdiction to modify its order regarding spousal support payments after 1980. The interlocutory judgment provides that the husband make monthly payments of $150 until May 1, 1980, whereupon the obligation of support will terminate. Under Civil Code section 4801, the trial court would have no jurisdiction to extend or modify such payments beyond that time.

In Re Marriage of Holmgren

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THE COURT.

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