MUST SHOW CHANGED CIRCUMSTANCES (UNREALIZED EXPECTATIONS) TO EXTEND SPOUSAL SUPPORT

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An important case came down earlier this year regarding spousal support, holding that the supported party in what is referred to as a Richmond order must show changed circumstances such as “unrealized expectations” to warrant an extension of support.  In IRMO Khera & Sameer (CA 6 – Opinion filed June 19, 2012), the court also determined that a voluntary decision to pursue a doctoral degree rather than going to work full time is not a change of circumstances that warrants an extension of support.

The case centers around two parties that had reached a judgment that included spousal support.  Wife moved to set aside the judgment and then moved to modify spousal support by extending it beyond the scheduled termination date.  Husband opposed the relief request.

The appellate court ultimately denied Wife’s motion.  In its decision, it cited California Family Code § 4330 (a), which provides that support of a party may be ordered in an amount and for a period of time, that the court determines is just and reasonable based on the standard of living established during the marriage.  It also stated that several factors that are listed in Family Code § 4320 must be considered.

Also cited was Family Code § 3651(d), which states that a support order may be modified or terminated at any time unless the parties agree otherwise in writing or orally on the record in open court.  IRMO McCann (1996) 41 Cal.App.4th 978, 982, dictates that modification of spousal support, even if the prior amount is established by agreement, requires a material change of circumstances since the last order.

A material change of circumstances may be found in the unrealized expectations of the supported party.  However, under IRMO Farrell (1985) 171 Cal.App.3d 695, a change of circumstances may not be found by reconsidering a circumstance that has not changed since the previous order.  If changed circumstances are proved, a trial court presented with a request to modify a spousal support order must then reconsider the criteria set for in Family Code § 4320.

PASTOR GUILTY IN AIDING FLEEING WOMAN IN SAME-SEX CUSTODY DISPUTE

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A very interesting case came down last week where a pastor from Virginia was convicted of helping a woman flee the country three years ago, when she was on the brink if having to turn custody of her young daughter over to the woman who was once her partner in a Vermont civil union.

Kenneth Miller was convicted of orchestrating the flight of Lisa Miller and her daughter, working with others to find them a new home in Central America.  At the time of her 2009 disappearance, Lisa Miller was bound by a Vermont family court order that she giver her former partner, Janet Jenkins, visitation with their daughter, Isabella Miller-Jenkins.

The jury issued its verdict against the Rev. Miller after several hours of deliberations in the case, which has drawn broad attention because of the legal and religious questions it raised about same-sex unions and child custody, and because the whereabouts of mother and daughter remain unknown.  Lisa Miller, who isn’t related to Kenneth Miller, and the now-10-year-old girl were last known to be in Nicaragua.

Jenkins and Lisa Miller were joined in a Vermont civil union in 2000 and Isabella was born to Lisa in 2002.  The couple split in 2003.  The Vermont family court gave custody of Isabella to Lisa Miller, but gave Jenkins regular visitation.

Lisa Miller then returned to Virginia, became a conservative Christian, renounced homosexuality and sought full custody of the girl.  She and Isabella disappeared in September 2009, two months ahead of an expected decision by the Vermont family court to transfer custody to Jenkins because of Miller’s continued refusal to abide by the visitation orders.  The U.S. does not have an extradition treaty with Nicaragua.

CHARACTERIZATION AND DIVISION OF PROPERTY; UNDUE INFLUENCE

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In regards to the division of property and assets, an important family law appellate court decision came down last year regarding a husband’s failure to rebut the presumption of undue influence that arose when he refinanced a house in his name alone and refused to convey title to himself and his wife in joint names after she quitclaimed her interest to facilitate a loan.

IRMO Fossum (2011) 192 CA 4th 336, 121 CR3d 195 involved a married couple that purchased a house in 1994, whereby they agreed that Husband would obtain a purchase money loan and take title to the house in his own name, and Wife would execute a quitclaim deed, due to the fact Husband’s credit was better than Wife’s.  Husband had promised to reconvey title to Wife after the close of escrow.  During the marriage, the couple had refinanced the home twice, making a similar agreement each time.  However, after the second refinance, Husband refused to put wife back on the title to the house.

During the parties’ ensuing divorce, Husband also claimed he was entitled to reimbursement for his separate property contribution to the downpayment on the house.  However, the trial court had heard “conflicting testimony as to whether the source of the funds drawn on the parties’ joint bank account came from their joint earnings working in Husband’s construction business in 1994, or was solely the fruit of Husband’s efforts and savings.”  The trial court held that the house was community property, and Husband appealed.

The California Court of Appeals affirmed the judgment with respect to the ruling on the house.  The appellate court determined that the trial court had found Wife’s testimony credible regarding the parties’ arrangements for taking title and that the downpayment came from money they had earned together.  Under California Family Code § 721, a presumption arose that Husband exerted undue influence in having his wife sign a third quitclaim deed on the basis of his promise that he would restore her name to the title, and Wife did not have to otherwise prove fraud or deceit.

MATERIAL CHANGE OF CIRCUMSTANCES FOR CHILD SUPPORT REDUCTION

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An interesting case came down last year regarding the modification of child support.  In the case of Marriage of Bodo (2011) 198 CA4th 373, 129, CR3d 298, a California Appellate Court held that requiring a “substantial change of circumstances” as a condition of modifying an agreed-to child support order is equivalent to requiring a “material change of circumstances;” and a trial court that found no substantial change in parties’ financial circumstances did not apply an improper legal standard.

The facts of the case were as follows:  As part of a judicially supervised settlement of their marital dissolution, the parties stipulated that Husband’s income was $33,333 per month and that he would pay $7,000 monthly for the support of the couple’s four children, along with private school tuition through high school.  Two years later, Husband moved to reduce child support, arguing that his income was reduced and he had to borrow funds to pay support.

The trial court found that support under the parties’ agreement could not be reduced without a “substantial change in circumstances,” and that, although a substantial change in Husband’s time-share (from 20 to 38.5 percent) warranted some reduction, there was no substantial change in Husband’s overall income.

Therefore, the trial court reduced the support amount to $6,178 and made orders regarding more than $79,000 in arrearages.  Husband appealed, claiming that the trial court applied an incorrect legal standard instead of determining whether a “material change of circumstances” had occurred to modify an “above guideline” support amount.  Husband also claimed that the court should have considered the financial effects of a change in time-share in evaluating whether his financial circumstances had changed.

The court of appeal affirmed the judgment.  It held that the trial court did not abuse its discretion.  The appellate court found that courts have variously referred to the need to show a “change of circumstances,” a “material change of circumstances,” or a “substantial change of circumstances” as a basis to modify support.

The appellate court concluded that a “material change of circumstances” is the same as a “substantial change of circumstances” for the purpose of modifying child support.  It held that the trial court did not apply the wrong legal standard in evaluating the merits of Husband’s motion to modify support.  It also held that the trial court did not abuse its discretion in finding no overall change in Husband’s income, even though some underlying facts had changed.  Lastly, the appellate court found that the trial court had correctly taken into account the change in Husband’s time-share in reducing child support per month.