Murkiness grows: Appellate ruling’s impact upon permanent support modifications

Family law litigation is fraught with uncertainty. There are a host of reasons for this, but the most obvious stem from the fact that all findings are made by one individual finder of fact, the bench officer, who is entrusted with immense discretion. Experienced counsel know, and struggle, with the reality that judge A will make a ruling that may be markedly different from judge B and even judge C.

What does this variation do to a practitioner's ability to guide his or her client's case and manage expectations? Well, it certainly does not inspire confidence.

This unpredictability arguably is no more evident than in the arena of permanent spousal support modification, where a practitioner must wade through a seemingly endless list of factors, which, when considered together, should render a fair and equitable support order.

The relevant portion of the Family Code Section 4320, provides counsel with a total of 13 specific guidelines and one catch all to consider in order to analyze permanent spousal support.

Most family law attorneys are highly familiar with these factors, and may have even memorized them at some point in their careers. Family law bench officers are also all too familiar with these factors, as they are required to consider each and every one of them upon a showing of a material change of circumstances, pursuant to the language in the statute itself.

The legislative history behind Section 4320 is somewhat minimal. In 1992, when the Family Code was created, Section 4320 was largely reproduced from former Civil Code Section 4600, and was reorganized into the Family Code, effective on January 1, 1994. In 2018 and 2019, several provisions were added to Section 4320 (i) to expand the circumstances relevant to a finding of domestic violence and its subsequent impact upon an order for spousal support.

The subsequent case law regarding a modification of permanent spousal support has bolstered Section 4320, emphasizing the need for judicial officers to weigh each factor carefully and thoughtfully. This case law is clear -- a trial court has broad discretion to decide whether to modify a spousal support order. But in exercising that discretion, the court must consider the required factors set out in section 4320. Marriage of Cheriton , 92 Cal. App. 4th 269, 303 (2001); Marriage of Shimkus, 244 Cal. App. 4th 1262, 1273 (2016).

What constitutes "consideration" of the required Section 4320 factors? What must a judicial officer do to demonstrate that a particular factor has been considered? Must there be a clear and unequivocal mention of each factor on the record or in writing? The answers to these questions are addressed in the recent case in Marriage of Kahan and Diamond, 2021 DJDAR 12600 (Cal. App. 2nd Dist., Dec. 9, 2021), allowing for even further discretion to the judicial officer -- and further confusion and uncertainty.

In Diamond, the court had to contend with Diamond's second post-judgment request to modify spousal support. In November of 2019, Diamond filed his request, seeking that his monthly support of $3,800 be decreased based on three claims -- (1) the parties' second child had aged out of child support, (2) husband's income had decreased, and (3) wife had "failed to make good faith efforts toward becoming self-sufficient." Kahan opposed claims 2 and 3, arguing that Diamond's income had actually increased, and that she had followed a vocational expert's recommendations to the best of her ability to become self-supporting. The trial court denied Diamond's request, addressing only his income and Kahan's steps to become self-supporting. It reasoned that Diamond now had additional monthly income, and that Kahan had followed the vocational evaluator's recommendations. The court made no specific findings or mention of any additional specific Section 4320 factors. Diamond appealed, arguing that the trial court abused its discretion by failing to consider each of the factors set out in Section 4320.

The appellate court disagreed. It reasoned that although the trial court must consider Section 4320 factors in deciding whether to modify a spousal support order, the statute does not require any one factor to be mentioned expressly. In support, the trial court referenced Cheriton: "'In making its spousal support order, the trial court possesses broad discretion so as to fairly exercise the weighing process contemplated by section 4320, with the goal of accomplishing substantial justice for the parties in the case before it.'" (Quoting Marriage of Kerr, 77 Cal. App. 4th 87, 93 (1999). It is important to note here that Cheriton does not state that the trial court must expressly identify each factor and set forth in writing or on the record how it has weighed each of them.

In what seems to be an attempt to mitigate this lack of guidance, the appellate court offers that best practices dictate findings should be made as to each Section 4320 factor. The failure to make express findings may also become relevant when a judgment "provides no insight into how the court weighed the statutory factors," raising the question "whether the court in fact weighed or even gave due consideration to the statutory factors." Marriage of Geraci, 144 Cal. App. 4th 1278, 1297 (2006). This rare occurrence could provide a practitioner with the ability to challenge the usual deference to the court's exercise of discretion and force a remand for the court to reconsider the issue. However, based on the treatment of the factors in Diamond, it is hard to imagine a scenario that would give rise to such a circumstance -- unless perhaps the trial court made absolutely no mention of any factor, whatsoever.

Diamond makes clear that the judicial officer need not expressly analyze, mention, or even acknowledge, all of the 14 factors. In fact, a judicial officer may briefly reference only a few of these factors, in its discretion, to satisfy the demands of Section 4320 and the applicable case law. This new case law solidifies that, as practitioners, we have to make ourselves, and our spousal support clients, more comfortable swimming in these murky waters. 