Judges need not show their work in setting spousal support

In Marriage of Diamond, 2021 DJDAR 12600 (Dec. 9, 2021), the 2nd District Court of Appeal recognized and upheld the limits on a trial judge's obligation to consider the statutory factors in setting the amount of spousal support. While the court acknowledged that making express findings on each of the factors set forth in Family Code Section 4320 was the "better practice," absent a question about whether the trial court even considered the pertinent factors, there is no abuse of discretion.

The facts of the case are unremarkable: Husband and Wife divorced in 2014 after a 17-

year marriage. Based on income of $196,440 per year, Husband was ordered to pay $3,674 per month in child support for the parties' three children and $4,326 per month in spousal support. When judgment was entered, Wife had no income from employment or otherwise. In 2017, the amount of child support was reduced automatically when the first of the parties' three children aged out. On that occasion, the amount of spousal support was also reduced to $3,800 per month based on a decrease in Husband's annual income to $185,664.

In 2019, Husband filed another request to lower the amount of spousal support based on three "material changes" in the parties' circumstances. The parties' second child had aged out; husband's income had decreased; Wife had failed to make good faith efforts toward becoming self-sufficient.

The trial court denied Husband's request to modify spousal support and ordered him to pay Wife's legal fees for opposing the request in the amount of $5,000.

Husband had several distinct disadvantages that set him up for frustration and failure, both in the trial court and on appeal. To begin with, he was representing himself. Although he was a lawyer, he was not a family lawyer. Apart from the normal tendency to allow his emotional perspective to affect his professional judgment, most lawyers do not understand the reason family law is a recognized specialty; even a very experienced civil litigator can make mistakes that family lawyers routinely avoid.

Second, Husband apparently believed (erroneously) that there was no harm in repeatedly relitigating the same issues. Both the trial judge and the appellate panel noted that Husband had filed and then withdrawn a request for modification prior to the hearing less than a year after the parties signed a stipulated judgment; threatened to file another request for modification six months after the court had modified spousal support; and unsuccessfully sought an award of sanctions and fees followed by the request for modification at issue on appeal. This strategy often undermines a litigant's credibility and alienates the court.

For example, every time a child aged out of child support, Husband claimed that he was entitled to a corresponding reduction in spousal support. On the one hand, Family Code Section 4336 provides that the termination of child support "constitutes a change of circumstances that may be a basis for a request by either party for modification of spousal support." On the other hand, if a spousal support payor's income is higher than it was when the previous support order was made, a judge is unlikely to reduce the amount of spousal support.

Third, in an effort to reduce the amount of his income that would be burdened with support obligations, Husband filed a revised income and expense declaration one week before the hearing in which his income was shown as $224,654 per year, not the $288,753 per year he had shown in the declaration filed concurrently with his request for order. Husband also claimed to have $5,000 per month in expenses attributable to his home office. The opinion does not discuss the latter claim in detail; however, it is clear that it was given short shrift by the trial judge who also declined to consider the revised declaration on the ground that it was untimely. On appeal, Husband argued that the trial judge should have ordered a continuance that he never requested.

Fourth, Husband contended that the trial judge abused her discretion by failing to consider each of the factors listed in Section 4320:

(a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage.

(b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.

(c) The ability of the supporting party to pay spousal support, taking into account the supporting party's earning capacity, earned and unearned income, assets and standard of living.

(d) The needs of each party based on the standard of living established during the marriage.

(e) The obligations and assets, including the separate property, of each party.

(f) The duration of the marriage.

(g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.

(h) The age and health of the parties.

(i) All documented evidence of any history of domestic violence,

(j) The immediate and specific tax consequences to each party.

(k) The balance of the hardships to each party.

(l) The goal that the supported party shall be self supporting within a reasonable period of time.

(m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4324.5 or 4325.

(n) Any other factors the court determines are just and equitable.

The Court of Appeal took advantage of the opportunity to clarify the trial court's obligations: "Although by statute the trial court must consider section 4320 factors in deciding whether to modify a spousal support order, the statute does not purport to require the court to address each factor expressly." To be sure, the trial judge must both recognize and weigh each applicable statutory factor in setting spousal support. However, per Marriage of Cheriton, 92 Cal. App. 4th 269 (2001), the trial judge need not expressly identify each factor and set forth in writing or on the record how each one was weighed. In Diamond, the trial judge expressly considered the three applicable factors Husband relied on; the failure to articulate its consideration of any other factors was not an abuse of the trial court's discretion.

While it may not be entirely fair to label these rookie mistakes, they illustrate the very significant disadvantage of being a litigant in propria persona. The lessons implicit in this case have little to do with its unremarkable facts, or the predictable rulings of the trial judge that were affirmed on appeal. Even after more than 50 years of California's no-fault divorce law, some lessons appear not to have been learned:

• With rare exceptions, the primary drivers of the support orders made by trial judges and affirmed by appellate courts are the need of the supported spouse and the ability of the supporting spouse to meet that need.

• Attempts to mislead the court by understating the income available for support or overstating the business expenses that reduce that income is not a sound litigation strategy.

• A trial judge is unlikely to be distracted from a primary focus on ability and need by collateral considerations.

The failure of a litigant to heed these lessons is invariably compounded if that litigant is in propria persona. 