Marriage of Baysinger CA4/2 (2014) · DecisionDepot
Marriage of Baysinger CA4/2
California Court of Appeal Jul 29, 2014 No. E058483Unpublished
Filed 7/29/14 Marriage of Baysinger CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re the Marriage of BILLY and CHERYL BAYSINGER.
BILLY BAYSINGER, E058483 Respondent, (Super.Ct.No. SBFSS46424) v. OPINION CHERYL BAYSINGER,
Appellant.
APPEAL from the Superior Court of San Bernardino County. Raymond L. Haight
III and James J. Hosking, Judges. Affirmed.
Edmund L. Montgomery for Appellant.
No appearance for Respondent.
1
Appellant Cheryl Baysinger appeals after an order denying her request to modify
spousal support. Cheryl1 contends on appeal as follows: (1) The trial court erred by
finding that it lacked jurisdiction to modify the spousal support order, which was filed
prior to the termination date of the previous spousal support order, but was not heard until
after the prior order was terminated; and (2) the trial court should have conducted a
hearing based on all of the factors in Family Code section 43202 before denying the
Respondent Billy Baysinger has not filed a respondent’s brief. California Rules of
Court, rule 8.220(a)(2), provides that when a party fails to file a responsive brief “the
court may decide the appeal on the record, the opening brief, and any oral argument by
the appellant.” We must “‘examine the record on the basis of appellant’s brief and to
reverse only if prejudicial error is found. [Citations.]’ [Citations.]” (Lee v. Wells Fargo
Bank (2001) 88 Cal.App.4th 1187, 1192, fn. 7.)
On August 11, 1999, Billy filed for divorce. According to the petition, he and
Cheryl were married on February 14, 1982, and had separated on July 15, 1999. Cheryl
and Billy apparently reconciled.
1 We refer to the Baysingers by their first names not out of disrespect but for ease of reference. 2 All further statutory references are to the Family Code unless otherwise indicated.
2
On May 10, 2002, Cheryl filed for legal separation. She claimed they had
separated on May 7, 2002. Billy contended the date of separation was July 2003. On
December 15, 2003, the trial court ruled on the legal separation that the date of separation
of the marriage was December 31, 2001. The parties were to meet and confer to prepare
the judgment. On June 21, 2004, Cheryl filed a motion for reconsideration. It was
deemed untimely. Apparently, the parties were unable to execute a judgment on the legal
separation.
On August 25, 2004, Billy filed an amended petition for dissolution of marriage.
The decree of dissolution of marriage was granted August 25, 2004 on the grounds of
irreconcilable differences. The trial court ordered that marital status be terminated on
February 26, 2005, or upon the signing of the judgment, whichever later occurs.
On July 28, 2005, the trial court filed the judgment. The trial court retained
jurisdiction over the issue of spousal support for the benefit of both parties but none was
awarded at that time.
On January 22, 2010, Cheryl filed an order to show cause for spousal support in
the amount of $600 per month. Cheryl filed an income and expense declaration. She
alleged that the marriage was of long duration pursuant to sections 4320 and 4336.3 She
declared that her income had changed and she needed spousal support.
3 Section 4336, subdivision (a) provides, “Except on written agreement of the parties to the contrary or a court order terminating spousal support, the court retains jurisdiction indefinitely in a proceeding for dissolution of marriage . . . of the parties where the marriage is of long duration.” Subdivision (b) of section 4336 provides a presumption of 10 years is a marriage of long duration.
3
On March 29, 2010, Billy filed a response contesting the request for spousal
support. Billy alleged he was 72 years old. He insisted that Cheryl had to be self
supporting within five years of the marital dissolution. He also filed an income and
expense declaration.
The trial court heard the matter on June 3, 2010. Cheryl stated that she no longer
had any income to support herself. The trial court noted Cheryl would receive social
security starting January 15, 2013, and that “[c]learly, I wouldn’t order any spousal
support after you’re going to get social security.” The trial court ruled, “In considering
4320 factors, I think for the next two years there’s going to be a sufficient disparity of
income but some spousal support is warranted. I do find as of January 1st, 2013, incomes
will be nearly equal because [Cheryl] will be getting social security over $1200. So what
I’m going to do is order spousal support in the amount of $200 to commence July 1st of
this year. It will terminate on January 1st, 2013, and the Court will terminate jurisdiction
over spousal support.” The trial court denied support retroactive from January 2010.
Cheryl never objected to the decision.
On December 31, 2012, Cheryl filed an order to show cause for modification of
spousal support. Cheryl requested spousal support in the amount of $600 per month. She
also requested retroactive spousal support in the amount of $1,000 for the time period of
January 22, 2010 (the date she filed the original order to show cause for spousal support)
to June 3, 2010 (the date the matter was heard). Cheryl complained that the trial court
did not consider that Cheryl only received two and one-half years of spousal support for a
twenty year marriage. She filed an income and expense declaration.
4
The matter was heard on February 13, 2013. The trial court stated that it had
reviewed the pleadings and the file.4 It noted that the trial court previously had provided
that spousal support would terminate on January 1, 2013 and that jurisdiction would
terminate on that date. The trial court noted that the request for modification was filed on
December 31, 2012. The trial court stated, “It was filed before jurisdiction terminated,
but the Court’s jurisdiction has now terminated and I do not believe that the Court has
jurisdiction to terminate - - or to modify this judgment any longer. My tentative is to
deny the request for order.”
Cheryl stated, “. . . based on the long-term marriage, I am requesting spousal
support based on my constitutional Amendment 14 due process, equal protection clause.”
Cheryl also argued that she did not receive the appropriate compensation in the divorce.
The trial court stated that was an issue it could no longer decide. The trial court again
stated that jurisdiction as to spousal support had terminated and it was barred from
considering the request to modify. Moreover, the trial court stated that Cheryl had not
presented any change in circumstances since the last order. The trial court found,
“[E]ven if I did consider a request to modify, there’s been no additional change in
circumstances from the time of the first trial warranting any modification of the Court’s
orders. [¶] The request for order filed December 31, 2012, is denied.”
Cheryl filed a notice of appeal on April 3, 2013 pursuant to Code of Civil
4 The trial judge who heard the modification of spousal support was different from the trial judge who originally granted spousal support.
5
II
ANALYSIS
Cheryl’s claims essentially are that the trial court erred by finding it lacked
jurisdiction to modify and extend spousal support, and that it did not consider the factors
in section 4320 in denying the modification. We need not engage in a lengthy discussion
of whether the trial court had jurisdiction to modify and extend the spousal support as it
concluded, in the alternative, that no change of circumstances warranted extension of the
spousal support. Such determination was not an abuse of discretion.5
‘“Appellate review of orders modifying spousal support is governed by an abuse
of discretion standard.’ [Citations.]” (In re Marriage of Dietz (2009) 176 Cal.App.4th
387, 398.) When a party seeks to modify spousal support, the party must proffer
admissible evidence of a material change of factual circumstances after the last order.
(Ibid.; In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 575.) “While the trial
court has wide latitude in exercising its discretion to modify an award of spousal support,
there must be demonstrated a material change of circumstances subsequent to the prior
order. [Citation.] In the absence of such a substantial change of circumstances, the court
has no authority to modify a spousal support award. [Citation.] The facts and
circumstances of each case determine whether a modification is warranted, and the
exercise of the trial court’s discretion in ordering modification will not be disturbed on
5 We do note that based on the cases cited in appellant’s opening brief, it does appear the trial court had jurisdiction to hear the modification as the original order did not foreclose modification.
6
appeal unless, as a matter of law, an abuse of discretion is shown. [Citation.]” (In re
Marriage of Farrell (1985) 171 Cal.App.3d 695, 700.)
“‘Whether a modification of a spousal support order is warranted depends upon
the facts and circumstances of each case, and its propriety rests in the sound discretion of
the trial court the exercise of which this court will not disturb unless as a matter of law an
abuse of discretion is shown.’ [Citation.] An abuse of discretion occurs ‘where,
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 same
circumstances.’ [Citation.]” (In re Marriage of Olson (1993) 14 Cal.App.4th 1, 7.) “‘So
long as the court exercised its discretion along legal lines, its decision will not be
reversed on appeal if there is substantial evidence to support it.’” (In re Marriage of
Biderman (1992) 5 Cal.App.4th 409, 412.)
Here, the record supports the trial court’s conclusion that Cheryl provided no
material change of circumstances warranting continued spousal support. She submitted
almost an identical income and expense declaration as the one submitted at the time she
initially requested spousal support. The only difference was apparently she purchased a
car and was making payments on the car. She admitted in her order to show cause that
there had been no change in her disability circumstances since the trial on June 3, 2010.
Her income had not changed. She was unable to work at both times. Moreover, Cheryl
has made no argument on appeal that there was a material change in her circumstances.
Rather, she focuses on the trial court’s additional ruling that it had no jurisdiction to hear
the matter. However, as noted, the trial court alternatively found that even if it decided
7
the issue, there were not changed circumstances warranting continuation of spousal
support. The trial court did not abuse its vast discretion in denying continued spousal
support to Cheryl.
Cheryl claims that the trial court did not consider the factors in section 4320 in
denying the modification because it found it lacked jurisdiction to modify the spousal
support. Initially, this ignores the fact that the trial court also found that if it had
jurisdiction, it would not have granted additional spousal support. Moreover, unless the
record shows otherwise, we presume the trial court considered the section 4320 factors in
denying continued support. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [“‘A
judgment or order of the lower court is presumed correct. All intendments and
presumptions are indulged to support [the judgment] on matters as to which the record is
silent, and error must be affirmatively shown.’”].)
“A trial court considering whether to modify a spousal support order considers the
same criteria set forth in Family Code section 4320 as it considered in making the initial
order.” (In re Marriage of West (2007) 152 Cal.App.4th 240, 247.) Section 4320
includes several factors to be considered in determining spousal support including the
earning capacity of each party, the marketable skills of the supported party, ability of the
supporting party to pay spousal support, needs of each party based on the standard of
living established during the marriage, the obligations and assets of each party, the
duration of the marriage and several other factors.
Here, at the initial hearing to award spousal support, the trial court made its
findings under section 4320. It also stated that it would terminate jurisdiction for
8
awarding spousal support in January 2013 because at that time Cheryl would begin
receiving social security. The trial court noted at the modification hearing that no
material change of circumstances had been shown since the prior hearing. It considered
the section 4320 factors at the prior hearing. Nothing in the record establishes that the
trial court ignored the factors in section 4320 in denying continued spousal support.
Cheryl has failed to show that the trial court erred in finding no material change of
circumstances and denying continued support.
III
DISPOSITION
The order appealed from is affirmed. Cheryl is to bear her own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI J.
We concur:
McKINSTER Acting P. J.
CODRINGTON J.
9
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the denial of a motion to modify spousal support, holding that the trial court did not abuse its discretion in finding that the appellant failed to demonstrate a material change of circumstances warranting a modification.
Issues
Did the trial court err in finding it lacked jurisdiction to modify a spousal support order after the termination date?
Did the trial court err by failing to consider Family Code section 4320 factors when denying the modification request?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“In the absence of such a substantial change of circumstances, the court has no authority to modify a spousal support award.”
“the record supports the trial court’s conclusion that Cheryl provided no material change of circumstances warranting continued spousal support.”
“The trial court did not abuse its vast discretion in denying continued spousal support to Cheryl.”