Filed 9/30/15 In re Marriage of Nussbaum CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re the Marriage of ESTEFANIA and

STEVE NUSSBAUM.

D067550

ESTEFANIA NUSSBAUM,

Respondent, (Super. Ct. No. D486177)

v.

STEVE NUSSBAUM,

Appellant.

APPEAL from an order of the Superior Court of San Diego County, Cindy D.

Davis, Judge. Affirmed.

Patrick J. McCrary for Appellant.

Estefania Nussbaum, in pro. per., for Respondent. Steve Nussbaum appeals from an order of the superior court reducing, but not

terminating, his spousal support obligations to his former wife, Estefania Nussbaum.1

He contends the court erred in (1) considering his earning ability and (2) not considering

Estefania's history of poor asset management and failure to attempt to become self-

supporting.2 We find Steve's arguments do not support a reversal of the order and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Steve and Estefania married in July 1986 and separated 18 years later in 2004.

Estefania filed a petition to dissolve the marriage in September 2004 and in 2006 the

parties entered into a marital settlement agreement that divided their property; pursuant to

the agreement's terms, Steve was awarded the couple's home and he paid Estefania

$149,000 in after-tax dollars to equalize the division of property.3

The issue of spousal support was tried separately to the court. At the time, Steve's

monthly income was $7,542 and Estefania's was $3,500. Finding that Estefania's income

was insufficient to meet the standard of living enjoyed during the marriage but

recognizing that Steve had certain health issues, the court awarded Estefania spousal

1 We refer to the parties by their first names as is the custom in family law matters. (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 475, fn. 1.)

2 Steve makes a related argument that the court erred in finding that Estefania had not previously been given a warning in accordance with In re Marriage of Gavron (1988) 203 Cal.App.3d 705 (Gavron), which recognized that "[i]nherent in the concept that the supported spouse's failure to at least make good-faith efforts to become self-sufficient can constitute a change in circumstances which could warrant a modification in spousal support is the premise that the supported spouse be made aware of the obligation to become self-supporting. (Id. at p. 712.)

3 Estefania used the equalization payment to purchase a condominium in San Diego. 2 support of $1,000 a month. The court also acknowledged Steve's stated desire to retire

when he reached age 62 (in 2011) and indicated that the issue of spousal support could be

revisited at that time.4 The court entered a judgment that incorporated its findings, the

spousal support award and a preprinted warning that the court could consider a party's

failure to make reasonable efforts to become self-supporting as a basis for later

modifying or terminating spousal support.

In June 2012, Estefania (who had a 10th grade education) lost her job as an

electronic assembler when her employer moved its local operations to Puerto Rico. She

was unable to find another job for more than a year and, based on her lack of income, she

lost her condominium to foreclosure. She cashed out her portion of the community

retirement benefits (and paid the related taxes and penalties) so that she could buy a

condominium in Las Vegas, Nevada, where she ultimately found a job working 20 to 30

hours a week as a caregiver for $9.50 an hour.

After retiring at the end of 2013, Steve stopped paying spousal support and filed a

motion to terminate his obligation to pay support. Because she had very limited assets,

almost none of which were liquid, Estefania was forced to take out a loan and borrow

money from family and friends to meet her monthly financial needs. In May 2014,5

Steve started receiving $2,400 per month in social security benefits. Estefania filed an

4 In 2007, Steve apparently brought a motion to modify spousal support, which the superior court denied after concluding that there was no change in circumstances sufficient to warrant modification.

5 All further date references are in 2014 except as otherwise noted. 3 opposition to Steve's motion to terminate support and submitted a declaration setting

forth her financial situation.

Based on the evidence, the court found that Steve's social security benefits

exceeded his monthly expenses ($1,590) by $810 and that he could reasonably expect to

receive an additional $725 per month in income from his retirement savings. It further

found that Estefania had monthly income of $1,140 and expenses of $1,730 (a substantial

portion of which was debt service), resulting in a net negative monthly income of $600.

It found that Steve had the ability to continue paying support and that Estefania was

unable to meet her monthly financial needs and declined to terminate spousal support, but

reduced it to $600 per month effective February 1 and ordered Steve to pay Estefania

$3,600 in support arrearages on August 1; it also gave Estefania an oral Gavron warning.

Steve appeals.

DISCUSSION

A modification of spousal support requires a material change of circumstances

since the last order. (In re Marriage of Dietz (2009) 176 Cal.App.4th 387, 396 (Dietz).)

A 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 and includes

all factors affecting need and ability to pay, including (a) the extent to which each party's

earning capacity is sufficient to maintain the marital standard of living; (b) the supporting

party's ability to pay spousal support; (c) the parties' respective needs based on the

marital standard of living, obligations and assets, including their separate property; (d)

the parties' ages and health; (e) the duration of the marriage; (f) the supported spouse's

4 ability to engage in gainful employment; and (g) the balance of the hardships to the

parties. (Id. at pp. 396-397, citing Fam. Code, § 4320, subds. (a), (c)-(f), (h), (k).)

The trial court has broad discretion in ruling on a request to modify or terminate a

spousal support order. (In re Marriage of Biderman (1992) 5 Cal.App.4th 409, 412.) We

review an order granting or denying a request to modify spousal support for an abuse of

discretion, which is established only when " 'it can fairly be said that no judge would

reasonably make the same order under the same circumstances.' " (In re Marriage of

Reynolds (1998) 63 Cal.App.4th 1373, 1377, quoting In re Marriage of Sinks (1988) 204

Cal.App.3d 586, 591.) Moreover, we may not disturb a trial court's factual findings if

there is substantial evidence to support them. (In re Marriage of Norvall (1987) 192

Cal.App.3d 1047, 1060.)

Here, the court recognized that Steve's retirement constituted a change of

circumstance and that he had a right to stop working. It recounted the parties' standard of

living during the marriage and characterized it as middle class, one that "wasn't

extravagant, but [that] was solid." It noted that the 18-year marriage was considered as

long term and that Steve had only paid support for eight years. The court discussed the

parties' respective monthly incomes and expenses and found that, although both parties

had "[done] the best they [could]," Estefania was unable to meet her monthly needs and

Steve had the ability to continue to pay support at a reduced level. The evidence in the

record supports the court's findings and, given the circumstances, we conclude it did not

abuse its discretion in reducing rather than terminating Steve's spousal support

obligations.

5 Steve also argues that the family court erred in finding that Estefania had not been

given a Gavron warning. Unquestionably, the judgment of dissolution included the

following preprinted language:

"NOTICE: It is the goal of this state that each party will 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 or partner support."

Thus, the court's observation that no Gavron warning appeared in the record before it was

mistaken.6 However, Steve's reliance on this mistake as a basis for reversal is misplaced.

The fact that a Gavron warning has been given does not excuse the family court from

considering the factors set forth in Family Code section 4320 in determining whether to

modify or terminate support. (E.g., Dietz, supra, 176 Cal.App.4th at p. 396.) Further, the

transcript of the hearing here shows that the court declined to terminate support based on

its application of those factors, rather than solely based on the absence of a prior Gavron

warning.

The family court did not abuse its discretion in reducing rather than terminating

Steve's obligation to pay spousal support to Estefania.

6 Notably, Steve did not bring this mistake to the court's attention below. In fact, instead of pointing out the preprinted language in the judgment he relies on now, he argued that the court's 2006 acknowledgement that spousal support could be revisited at the time of his retirement was tantamount to a Gavron warning. Steve's failure to direct the court to the judgment could be deemed to constitute a waiver of the issue for purposes of appeal. (See In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 826.) However, since the issue has not been briefed by the parties, we decline to rely on it as a basis for affirming the order. 6

DISPOSITION

The order is affirmed. Estefania is awarded her costs on appeal.

NARES, J.

WE CONCUR:

MCCONNELL, P. J.

HUFFMAN, J.

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