In Re Marriage of Romero

122 Cal. Rptr. 2d 220, 99 Cal. App. 4th 1436
CourtCalifornia Court of Appeal
DecidedJuly 11, 2002
DocketE030759
StatusPublished
Cited by14 cases

This text of 122 Cal. Rptr. 2d 220 (In Re Marriage of Romero) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Marriage of Romero, 122 Cal. Rptr. 2d 220, 99 Cal. App. 4th 1436 (Cal. Ct. App. 2002).

Opinion

122 Cal.Rptr.2d 220 (2002)
99 Cal.App.4th 1436

In re the MARRIAGE OF Linda Michele and Paul Louis ROMERO.
Linda Michele Romero, Respondent,
v.
Paul Louis Romero, Appellant.

No. E030759.

Court of Appeal, Fourth District, Division Two.

July 11, 2002.

*221 Law Offices of James S. Terrell, Victorville, and Valerie Ross for Appellant.

Robert J. O'Connor, Hesperia, for Respondent.

OPINION

GAUT, J.

1. Introduction

Husband Paul Louis Romero appeals from the trial court's post-judgment order denying his request for modification of spousal support based on a change in his *222 income as a result of his disability. Husband's sole claim on appeal is that the trial court erred in considering his new spouse's income in violation of Family Code section 4323, subdivision (b).

We conclude that, under the current law, the trial court is precluded from any direct or indirect consideration of a subsequent spouse's or nonmarital partner's income in determining or modifying spousal support. The record reveals that the trial court abused its discretion in considering the indirect effects of such income on husband's ability to pay and his standard of living. We reverse the court's order and remand for a new hearing on husband's request for modification.

2. Factual and Procedural History

Husband and his wife, Linda Michele Romero, were married for 28 years. Early in their marriage, wife worked while husband pursued his teaching credential and masters in school administration. During their marriage, husband and wife enjoyed various luxuries, including long vacations. In July of 1997, upon dissolution of the 28-year marriage, the trial court ordered husband to pay $1,200 per month in spousal support.

After the divorce, husband remarried and enjoyed a higher standard of living with his new spouse, who earned approximately $6,500 a month. Husband's new spouse had two children, both of whom were receiving voluntary or court-ordered support from their biological father. Husband and his new spouse lived in her home, which was located on a golf course, and had membership at the country club. On his income and expense declarations, husband reported approximately $5,000 in expenses, including $1,600 for the home and $700 for their country club fees and charges. Husband and his new spouse used their joint account to pay for their shared expenses.

Since the divorce, wife has experienced a lower standard of living. After declaring bankruptcy and losing the family home, she rented a room from her mother. She could no longer afford the same luxuries that she enjoyed during her marriage.

On August 17, 2000, after being diagnosed with Parkinson's disease and, as a result, taking early retirement, husband filed an order to show cause to reduce his spousal support obligation. Husband's gross income decreased from over $5,000 to approximately $3,000 per month.

On October 31, 2001, at the hearing on husband's order to show cause, the trial court found that, while husband's reduction in income constituted a material change in circumstances, such change did not require a reduction in spousal support based on the other factors listed in Family Code section 4320. The court made the following comments: "I don't see any way to avoid considering [new spouse's] income if we're going to consider [husband's] Income and Expense Declaration. Her income is set forth on the form. Her income is by implication at least partially responsible for paying [husband's] monthly debt. There's no way he could pay his monthly debt simply on his [$2,000] a month net income. [¶] I've read the code section referred to by [husband's counsel] that precludes the court from considering her income. I'm simply without any option. I don't see any other way to proceed other than to consider the family—[husband's] current total family circumstances because those circumstances are intertwined inextricably with our analysis of [section] 4320, specifically in the area of standard of living." Based on its evaluation of the Family Code section 4320 factors, the court denied defendant's request for modification.

*223 3. Discussion

Husband claims the trial court erred in denying his request for modification of the spousal support order by considering his new spouse's income in violation of Family Code section 4323, subdivision (b). The question in this case is whether, despite the statute's prohibition against the consideration of a subsequent spouse or cohabitant's income in determining or modifying spousal support,[1] the court may account for the indirect effects of this additional income on other considerations, including the husband's ability to pay and his standard of living.[2]

Before Family Code section 4323, subdivision (b) became effective in 1994, the prevailing approach was that the courts were allowed to consider a subsequent spouse's income in determining whether to modify spousal support.[3] In Gammell v. Gammell,[4] after a 31-year marriage, the court ordered the husband to pay $325 per month in spousal support. When the husband retired, he sought a modification in the spousal support order. The trial court, after considering the husband and his new wife's income and expenses, found that the husband had the financial ability to continue paying under the original support order.

In response to the husband's argument that the court erred in considering his second wife's income in determining his ability to pay, the appellate court stated: "The California courts have held that, while a husband's remarriage does not alone justify reduction of support payments to his former wife, the remarriage with its additional burdens is a factor to be considered. [Citations.] Since a remarriage with its additional burdens is a factor to be considered in modifying support payments, it appears fair and equitable that a remarriage with its additional benefits also ought to be considered. Furthermore, spousal support is determined according to the needs of both parties and the respective ability of the parties to meet those needs. [Citation.] Although the second wife's income in this case is her separate property, as a pragmatic matter this income directly or indirectly reduces the needs of the husband and it directly or indirectly affects the husband's ability to meet the needs of his former wife."[5]

The court further noted that the husband's additional expenses resulting from his remarriage did not exceed his second wife's financial contribution to the marriage.[6] In fact, her income substantially compensated for his reduced salary.[7] Based on the husband and his second wife's shared income and expenses, the court found that there was no material *224 change of circumstances justifying the requested modification.[8]

In a case from this court, In re Marriage of Ramer,[9] the parties separated after having four children and being married for 22 years. During the new trial, which was ordered by this court, the trial court awarded the wife $900 in spousal support and $450 in child support for the one remaining minor child. With this sum, wife, who was unemployed, was required to pay over $500 in mortgage payments, property taxes, property insurance premiums, $247 for the minor child's special educational needs, and other living expenses for herself and her children.

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Cite This Page — Counsel Stack

Bluebook (online)
122 Cal. Rptr. 2d 220, 99 Cal. App. 4th 1436, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-romero-calctapp-2002.