Schmir v. Schmir

134 Cal. App. 4th 43, 35 Cal. Rptr. 3d 716
CourtCalifornia Court of Appeal
DecidedNovember 16, 2005
DocketNo. B175397
StatusPublished
Cited by83 cases

This text of 134 Cal. App. 4th 43 (Schmir v. Schmir) 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
Schmir v. Schmir, 134 Cal. App. 4th 43, 35 Cal. Rptr. 3d 716 (Cal. Ct. App. 2005).

Opinion

[46]*46Opinion

JOHNSON, J.

Judy Schmir, a 61-year-old woman who had been unemployed for 14 years, appeals from an order terminating her $5,800-a-month spousal support from her ex-husband, Maurice Schmir.1 Judy contends the order is not supported by substantial evidence and the trial court erred in imputing earned income to her without first giving her fair advance notice and opportunity to secure employment. We find there was substantial evidence to justify terminating Judy’s spousal support but the trial court abused its discretion in doing it so abruptly as to deny Judy reasonable notice and an opportunity to find a job.

FACTS AND PROCEEDINGS BELOW

Judy and Maurice married in 1964 and separated in 1987. In 1989 their marriage was dissolved by a judgment based on a marital settlement agreement. The judgment provided that after the sale of the family residence Maurice would pay Judy spousal support in the sum of $5,800 per month until the death of either party, Judy’s remarriage, or further order of the court. The judgment recited Judy had no present employment or professional income and had unreimbursed medical expenses of approximately $2,000 per month. Neither the settlement agreement nor the judgment contained a “Richmond order” terminating spousal support jurisdiction as of a specific date2 nor a “Gavron warning” advising Judy she needed to become self-sufficient or face onerous legal and financial consequences.3

Maurice made the agreed-upon payments to Judy without objection until January 2003, when he sought an order modifying or terminating Judy’s support.

Maurice alleged three changes in Judy’s circumstances which justified reducing Judy’s spousal support: (1) Judy had returned to work; (2) Judy had reached the age when she could draw on her IRA without penalty; and (3) there had been a reduction in Judy’s unreimbursed medical expenses.

In June 2003 the court ordered Judy’s support reduced to $2,000 per month on an interim basis pending a further hearing on the matter.

Discovery was conducted, Judy underwent two vocational examinations and a hearing with live testimony was held, following which the trial court [47]*47granted Maurice’s request to modify the spousal support order. The court found there had been three changes in circumstances since the original support order. Although Judy had not returned to work she was capable of obtaining employment as a licensed clinical social worker at a gross salary of $2,500 per month; she was eligible to draw without penalty on her IRA which had a value in excess of half a million dollars and her medical expenses had decreased from $2,000 per month to $500 per month. Based on these changes in circumstances the trial court ordered Judy’s support reduced to zero the following month, ordered Maurice to contribute $12,000 to Judy’s attorney fees in the proceeding, and retained jurisdiction over spousal support.

Judy filed a timely appeal.

DISCUSSION

I. THE TRIAL COURT’S FINDING OF CHANGES IN JUDY’S CIRCUMSTANCES IS SUPPORTED BY SUBSTANTIAL EVIDENCE.

A. Standard of Review.

The modification of a spousal support order is reviewed on appeal for abuse of discretion. In exercising its discretion the trial court must follow established legal principles and base its findings on substantial evidence.4 If the trial court conforms to these requirements its order will be upheld whether or not the appellate court agrees with it or would make the same order if it were a trial court.

For a change in circumstances to exist there must have been a material change since the entry of the previous order. In other words if the circumstances in question existed at the time of the previous order those circumstances presumably were considered when the previous order was made and bringing them to the court’s attention years later does not constitute a “change” in the circumstances.5 Nor has there been a change in circumstances merely because a different trial judge disagrees with the previous order.6

In the present case the trial court found three changes in circumstances: Judy is presently employable as a licensed clinical social worker; Judy’s [48]*48medical expenses have decreased to $500 a month; and Judy is now eligible to withdraw funds from her retirement account without penalty. Judy challenges each of these findings as not supported by substantial evidence.

B. The Record Supports a Change in Circumstances Based on Judy’s Present Ability to Earn Income as a Licensed Clinical Social Worker.

The trial court found Judy is presently able to earn a minimum of $2,500 per month as a licensed clinical social worker (LCSW) and that this constitutes a change in circumstances since the original spousal support order in 1989. The evidence is undisputed Judy was not earning income as an LCSW or in any other field of employment at the time of the original order and has not engaged in gainful employment at any time since that order.

Judy maintains she cannot earn income as an LCSW but even if she could this would not constitute a change in circumstances because she was an LCSW at the time of the original judgment awarding her spousal support.7

The change in circumstances, however, is not based on Judy’s credentials as an LCSW but on her postjudgment regaining of the ability to practice this profession. In her responsive declaration to the order to show cause Judy explained that commencing in the mid-1980’s, “I had to deal with new and indeed life altering stressors all of which were related to the final unraveling of the marriage, including the five years of the divorce and community property distribution proceedings. . . . Finally, overwhelmed and exhausted, I stopped practicing [as an LCSW] altogether in May, 1988. I have not practiced as a psychotherapist since then and I have not been gainfully employed since May 1988.”

There is substantial evidence in the record from which the trial court could find these “life altering stressors” no longer interfered with Judy’s ability to practice her profession. To start with, the court reasonably could infer from the mere passage of time—14 years—that Judy was no longer “overwhelmed and exhausted” from her divorce experience. This inference is supported by the fact Judy did not mention psychological or emotional problems in discussing her health with the vocational expert who interviewed her in June 2003. Moreover, in this interview Judy stated she was the secretary and treasurer of her condominium association from 1991 to 1996 and in the course of this service she was engaged in “a full time job negotiating [with] [49]*49contractors, experts and attorneys relating to a lawsuit regarding construction problems as well as coordinating repairs” at the condominium complex. Judy also stated she had recently rejoined the association board of directors to help complete the final project. If Judy was psychologically and emotionally able to engage in a full-time job negotiating with contractors, experts and attorneys over repairs to a condominium complex, the trial court could reasonably conclude she was psychologically and emotionally capable of returning to her past employment as an LCSW.

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Cite This Page — Counsel Stack

Bluebook (online)
134 Cal. App. 4th 43, 35 Cal. Rptr. 3d 716, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schmir-v-schmir-calctapp-2005.