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Family Code §4336 was enacted in response to decisions of the California Supreme Court holding that it is an abuse of discretion for a court to terminate jurisdiction over spousal support in a case involving a lengthy marriage, unless the evidence clearly indicates that the supported spouse will be able to adequately meet his or her financial needs by the termination date. Marriage of Vomacka (1984) 36 C3d 459, 467–468, 204 CR 568; Marriage of Morrison (1978) 20 C3d 437, 453–454, 143 CR 139.
In other cases, a court has broad discretion in determining whether to divest itself of jurisdiction over spousal support on a certain date.
Marriage of Baker (1992) 3 CA4th 491, 498, 4 CR2d 553. As a general rule, a court should retain jurisdiction, except in the case of a short marriage, unless it can reasonably infer that the supported spouse will be self-supporting by the termination date; unknown future developments are better left to modification proceedings. 3 CA4th at 498–499; Marriage of Heistermann (1991) 234 CA3d 1195, 1201–1202, 286 CR 127 (court should retain jurisdiction in medium-length marriage when supported spouse may be unable to become self-supporting because of age or poor health). An order setting a termination date, but retaining jurisdiction, puts the supported spouse on notice that he or she is expected to become selfsupporting; it also shifts the burden to the supported spouse at a modification proceeding to show the changed circumstance of a continued need for support notwithstanding good faith efforts to become selfsupporting. 234 CA3d at 1201. See Marriage of Huntington (1992) 10 CA4th 1513, 1520–1521, 14 CR2d 1 (termination of support after six months was appropriate in case involving three-year marriage, when supported spouse had marketable skill she could make use of with little retraining); Marriage of Hebbring (1989) 207 CA3d 1260, 1266–1267, 255 CR 488 (abuse of discretion to retain jurisdiction in case involving short-term marriage when spouse seeking support is in good health and has employment that provides sufficient income for self-support).
J. Types of Orders 1. [§201.93] Order of Indeterminate Duration A support order may provide for support until the death of either spouse or the remarriage of the recipient spouse. This type of order is often appropriate when the marriage was of long duration or the supported 201–67 Child Support and Spousal Support §201.95 spouse does not possess the capacity to become self-sufficient. See Fam C §§4336(a), 4337. This support order may be modified or terminated on a showing of changed circumstances. See Fam C §4336(c); Marriage of Christie (1994) 28 CA4th 849, 852, 34 CR2d 135 (settlement agreement provided for termination of support on death of either party, wife’s remarriage, or “further order of the Court”).
2. [§201.94] Fixed-Term Order A support order may provide that support will be paid for a fixed period of time. In such a case, the order terminates at the end of the period provided in the order and may not be extended unless the court retains jurisdiction. Fam C §4335. This form of order is most common when the marriage was of short duration but generally is not appropriate if the marriage was of long duration.
3. [§201.95] Step-Down Order A step-down order automatically decreases the support amount at specified intervals. A nominal $1 final step-down is often tacked on to the order as a mere formality, so that the court can retain jurisdiction to modify the amount of support payments. Marriage of Forcum (1983) 145 CA3d 599, 605, 193 CR 596. These orders are fashioned to encourage self-support and rest on the assumption that the supported spouse will have an increased ability to provide his or her own support at the time of each step-down. Marriage of Anninger (1990) 220 CA3d 230, 240, 269 CR 388.
A step-down order cannot be based on mere supposition as to what the supported spouse’s future circumstances might be. The evidence in the record must support a reasonable inference that the supported spouse’s need for support will be less with each step-down and that he or she can realistically be self-supporting at the time nominal payments are set to begin. Marriage of Gavron (1988) 203 CA3d 705, 712–713, 250 CR 148.
A step-down provision may also be based on the supported spouse’s earnings, e.g., the order might provide for a reduction of spousal support by $1 for every $2 the supported spouse receives in earnings over a specified amount. See Marriage of Cheriton (2001) 92 CA4th 269, 309, 111 CR2d 755; Marriage of Paul (1985) 173 CA3d 913, 916, 219 CR
318. When the supporting spouse seeks a step-down order that is not limited to amounts the supported spouse receives in earnings, but is instead based on amounts the supported spouse receives regardless of the source (including proceeds from the sale of assets received on dissolution), the court must balance the supported spouse’s right to full enjoyment of his or her share of the community property against the §201.96 California Judges Benchguide 201–68 supporting spouse’s right not to be burdened with an open-ended support obligation. See Marriage of Cheriton, supra, 92 CA4th at 309–311.
If a court finds a present change of circumstances that would justify an immediate decrease in spousal support, e.g., a decrease in the obligor spouse’s ability to pay, it has the discretion to implement a step-down to ease the impact on the supported spouse. As long as the record clearly indicates that this is what the court is doing, this type of order does not require evidence of decreased need for each future step-down. Marriage of Rising (1999) 76 CA4th 472, 477–479, 90 CR2d 380.
4. [§201.96] Contingent Order A court may order spousal support for a contingent period of time. In such a case, the supporting party’s obligation to pay support terminates when the contingency occurs. Fam C §4334. See Marriage of Iberti (1997) 55 CA4th 1434, 1438–1441, 64 CR2d 766 (support contingent on recipient spouse attending accredited college or university, successfully completing 10 units each semester or quarter, and “actively pursuing a Bachelors degree”; support terminated when spouse dropped out of school).
5. [§201.97] Richmond Order A spousal support order may provide that support will terminate on a specified date unless, prior to the fixed termination date, the supported spouse files a motion showing good cause to modify the amount and /or duration of the order. Contingent termination orders of this type are known as Richmond orders or “sudden death” termination. When the court can reasonably infer from the evidence that the supported spouse is capable of self-support, such an order is appropriate, even on the dissolution of a lengthy marriage. Richmond orders serve the policy goal expressed in Fam C §§4320(l) and 4330(b) that both spouses can develop their own lives, free from obligations to each other. Marriage of Cheriton (2001) 92 CA4th 269, 311, 111 CR2d 755; Marriage of Richmond (1980) 105 CA3d 352, 356, 164 CR 381. See Marriage of Drapeau (2001) 93 CA4th 1086, 1098–1099, 114 CR2d 6 (issuance of Richmond order in case involving 21-year marriage).
Richmond orders are appropriate when the court feels the evidence justifies an order terminating jurisdiction at a future date but is concerned about unforeseeable circumstances that might arise before that date.
Marriage of Prietsch & Calhoun (1987) 190 CA3d 645, 665, 235 CR 587.
The effect of a Richmond order is to tell each spouse that the supported spouse has a specified period of time to become self-supporting, after which the obligation of the supporting spouse will cease. A Richmond order psychologically prepares the supported spouse for the 201–69 Child Support and Spousal Support §201.99 time when he or she must be self-supporting. It also places the burden of showing good cause for a change in the order upon the one who is most able to exercise the control necessary to meet the expectations the trial judge had in making the order. 190 CA3d at 665–666.
The appellate court in Prietsch takes the position that a Richmond order is the most appropriate form of order for spousal support in all cases except (1) when spousal support is either not ordered or is ordered for a fixed term of short duration, (2) in the most lengthy marriages when the circumstances justify truly “permanent” spousal support, or (3) when the supported spouse does not possess the capacity to become self-sufficient.
190 CA3d at 666.
The supported spouse must be made aware of the self-support expectations if the court is to terminate or reduce support on that basis at a specified future date; he or she may not be penalized for a failure to meet the court’s unrevealed expectation of self-sufficiency. Marriage of Gavron (1988) 203 CA3d 705, 711–712, 250 CR 148. A Gavron warning (see §201.90) should accompany the issuance of a Richmond support order.
K. [§201.98] Modifying or Terminating Spousal Support A court may modify or terminate a spousal support order as the court determines to be necessary. Fam C §3651(a).
1. [§201.99] Change of Circumstances Requirement The court may grant a motion for modification or termination of spousal support order only when there has been a material change of circumstances since the order was initially made. Marriage of Gavron (1988) 203 CA3d 705, 710, 250 CR 148.
A material change of circumstances means a reduction or increase in the supporting spouse’s ability to pay and/or an increase or decrease in the supported spouse’s needs. It includes all factors affecting need and ability to pay. Marriage of McCann (1996) 41 CA4th 978, 982, 48 CR2d 864.
See, e.g., Marriage of Lynn (2002) 101 CA4th 120, 126, 123 CR2d 611 (court may consider discharge in bankruptcy of one spouse’s property settlement debt to other spouse as factor in determining whether to modify bankrupt spouse’s support obligation). See also Marriage of Dietz (2009) 176 CA4th 387, 97 CR3d 616 (court erred in concluding that now penaltyfree accessibility and increased value of retirement accounts awarded to former wife constituted material change in circumstances that justified reduction in husband’s spousal support obligation).
The court must consider the circumstances listed in Fam C §4320 (see §§201.71–201.85) not only when making an initial spousal support order but also when making any subsequent modification order. Marriage of Terry (2000) 80 CA4th 921, 928, 95 CR2d 760.
§201.99 California Judges Benchguide 201–70 Although the passage of time may be related to a change in circumstances, it is not, by itself, a sufficient basis for modification.
Marriage of Heistermann (1991) 234 CA3d 1195, 1202, 286 CR 127;
Marriage of Gavron (1988) 203 CA3d 705, 710, 250 CR 148.
A change of circumstances may be in the form of “unrealized expectations” in the ability of the supported spouse to become selfsupporting within a certain period of time despite making reasonable efforts to secure employment. Marriage of Beust (1994) 23 CA4th 24, 29, 28 CR2d 201. See Marriage of Schaffer (1999) 69 CA4th 801, 811–812, 81 CR2d 797 (court may consider whether supported spouse has made unwise decisions that have had the effect of preventing him or her from becoming self-supporting).
Showing a material change in circumstances necessitates comparing financial information on which the original support order was based with the most recent financial information relevant to a new order, e.g., the parties’ current income and expense declarations. Marriage of Tydlaska (2003) 114 CA4th 572, 575–576, 7 CR3d 594 (when husband failed to present “evidentiary yardstick” with which court could determine appropriateness of modification order, his request to modify support was properly denied).
In a proceeding in which a spousal support order exists or in which the court has retained jurisdiction over a spousal support order and there is a companion child support order in effect, the termination of child support under Fam C §3901(a) (see §201.62), with the exceptions specified below, constitutes a change of circumstances that may be the basis for a request by either party for modification of spousal support. Fam C §4326(a). The termination of child support does not constitute a change of circumstances
in the following situations under Fam C §4326(d):
• The child and spousal support orders are the result of a marital settlement agreement or judgment that contains a provision regarding what is to occur when the child support order terminates;