Romero v. Romero
Romero v. Romero
Opinion of the Court
Opinion
1. Introduction
Husband Paul Louis Romero appeals from the trial court’s postjudgment order denying his request for modification of spousal support based on a change in his 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
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 Usted 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. [U] 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 Uving.” Based on its evaluation of the Family Code section 4320 factors, the court denied defendant’s request for modification.
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
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.
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.”
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.
In a case from this court, In re Marriage of Ramer,
In finding the spousal support ordered by the trial court to be grossly inadequate to meet the wife’s necessary expenses, we looked to the net disposable income of both the husband and his new wife. We observed that together they had a monthly net disposable income of about $4,040.
In In re Marriage of Tapia,
The court reasoned: “When a court assesses a party’s ability to pay spousal support, it considers
Based on the above cases, the former approach was that the trial court could consider the income of a new spouse or a nonspousal partner for the purpose of determining the party’s expenses and ability to pay spousal support. In 1993, however, the Legislature rejected this approach when it passed Senate Bill No. 145, which added subdivision (b) to Family Code section 4323. That provision, which became effective in 1994, consisted of the following limitation: “The income of a supporting spouse’s subsequent spouse or nonmarital partner shall not be considered when determining or modifying spousal support.”
To evaluate the effect of this legislation, we review the general rules of statutory interpretation. “In statutory construction cases, our fundamental task is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute. [Citation.] ‘We begin by examining the statutory language, giving the words their usual and ordinary meaning.’ [Citations.] If the terms of the statute are unambiguous, we presume the lawmakers meant what they said, and the plain meaning of the language governs. [Citations.] If there is ambiguity, however, we may then look to extrinsic sources, including the ostensible objects to be achieved and the legislative history. [Citation.] In such cases, we ‘ “ ‘select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.’ ” ’ [Citation.]”
While Family Code section 4323, subdivision (b) clearly forbids direct consideration of a new spouse’s or nonmarital partner’s income, the statute does not resolve the question of whether trial courts are precluded from indirect consideration of such income as it relates to the supporting spouse’s ability to pay and standard of living.
We turn therefore to the legislative history. The legislative materials reveal the following analysis: “An argument in support of attributing some
In addition to adding subdivision (b) to Family Code section 4323, Senate Bill No. 145 made similar amendments to the child support provisions.
By contrast, spousal support is designed to meet the needs of the supported spouse, rather than any children. Children, therefore, do not provide any basis for a similar exception in the spousal support context. Legislative history indicates that the prohibition against the consideration of a new spouse or nonmarital partner’s income is “without exception.”
We have found two appellate court cases that have mentioned the prohibition contained in Family Code section 4323, subdivision (b).
In Wood, the appellate court stated that, “[although the trial court claimed only to take into account [the new husband’s] income as it related to [the wife’s] standard of living, this was tantamount to considering new mate income.”
In agreement with Wood’s analysis, the court in In re Marriage of Loh
These child support cases indicate that, in passing the amendments to Family Code section 4057.5, the Legislature intended to exclude both direct and indirect consideration of new mate income—even as it relates to other factors, including the supporting spouse’s standard of living.
Although the current law fails to account for the shared expenses, we nevertheless are bound by the statutory language and Legislature’s clear intent to exclude new mate income in spousal support matters. To effectuate the Legislature’s intent and to avoid any absurd or unreasonable results,
In other words, the court must consider only husband’s part of the shared expenses. But how are the expenses to be divided? Any allocation of expenses, in effect, will take the new spouse’s income into consideration. For example, if we ignore the actual contributions and divide the expenses in half, the income of the spouse who contributes more to the community will be used to subsidize the income of the spouse who contributes less.
In this case, the court must determine what expenses are reasonable based only on husband’s net monthly income. Under such circumstances, where
Although this solution is contrary to the Legislature’s goals of uniformity and predictability,
In this case, the trial court ordered husband to continue to pay $1,200 per month in spousal support despite a material change in circumstance, namely, the reduction in husband’s salary as a result of his disability. In arriving at its decision, the court indirectly considered husband’s new wife’s income as it related to husband’s ability to pay and standard of living. Based on our analysis above, we conclude that the trial court abused its discretion in failing to apply Family Code section 4323, subdivision (b).
4. Disposition
We reverse and remand for a new hearing on husband’s request for modification of spousal support. In ruling on husband’s request, the trial court must consider husband’s reduced monthly net income and the relevant factors listed in Family Code section 4320 based on his reasonable expenses
Ramirez, P. J., and McKinster, J., concurred.
family Code section 4323, subdivision (b).
Family Code section 4320, subdivisions (c) and (d).
In re Marriage of Tapia (1989) 211 Cal.App.3d 628 [259 Cal.Rptr. 459]; In re Marriage of Ramer (1986) 187 Cal.App.3d 263 [231 Cal.Rptr. 647]; Gammell v. Gammell (1979) 90 Cal.App.3d 90 [153 Cal.Rptr. 169]; see also In re Marriage of Williams (1984) 155 Cal.App.3d 57 [202 Cal.Rptr. 10] (child support); Fuller v. Fuller (1979) 89 Cal.App.3d 405 [152 Cal.Rptr. 467] (same).
Gammell v. Gammell, supra, 90 Cal.App.3d 90 (hereafter Gammell).
In re Marriage of Ramer, supra, 187 Cal.App.3d 263 (hereafter Ramer)
Ramer, supra, 187 Cal.App.3d at page 272, citing Gammell, supra, 90 Cal.App.3d at pages 92-93, and In re Marriage of Williams, supra, 155 Cal.App.3d at page 63.
In re Marriage of Tapia, supra, 211 Cal.App.3d 628 (hereafter Tapia).
Tapia, supra, 211 Cal.App.3d at page 632.
Family Code section 4323, subdivision (b).
Estate of Griswold (2001) 25 Cal.4th 904, 910-911 [108 Cal.Rptr.2d 165, 24 P.3d 1191].
Assembly Committee on Judiciary, Analysis of Senate Bill No. 145 (1993-1994 Reg. Sess.) as amended June 28, 1993, page 2.
Senate Bill No. 145 (1993-1994 Reg. Sess.), section 2.
Family Code section 4057.5, subdivision (a)(1) and (2); In re Marriage of Wood (1995) 37 Cal.App.4th 1059, 1067 [44 Cal.Rptr.2d 236].
In re Marriage of Wood, supra, 37 Cal.App.4th at page 1067.
Assembly Committee on Judiciary, Analysis of Senate Bill No. 145 (1993-1994 Reg. Sess.) as amended June 28, 1993, page 1.
In re Marriage of Serna (2000) 85 Cal.App.4th 482, 487 [102 Cal.Rptr.2d 188]; In re Marriage of Reynolds (1998) 63 Cal.App.4th 1373, 1378 [74 Cal.Rptr.2d 636].
In re Marriage of Wood, supra, 37 Cal.App.4th 1059 (hereafter Wood).
Wood, supra, 37 Cal.App.4th at pages 1067-1068, 1071; see also In re Marriage of Corman (1997) 59 Cal.App.4th 1492, 1501 [69 Cal.Rptr.2d 880].
In re Marriage of Loh (2001) 93 Cal.App.4th 325 [112 Cal.Rptr.2d 893] (hereafter Loh).
Loh, supra, 93 Cal.App.4th at page 337; Wood, supra, 37 Cal.App.4th at pages 1068-1069; see also In re Marriage of Butler & Gill (1997) 53 Cal.App.4th 462, 467 [61 Cal.Rptr.2d 781]; but see County of Tulare v. Campbell (1996) 50 Cal.App.4th 847, 854 [57 Cal.Rptr.2d 902] (exception for tax liability).
Tapia, supra, 211 Cal.App.3d at page 631; Gammell, supra, 90 Cal.App.3d at page 93.
See In re Marriage of Watt (1989) 214 Cal.App.3d 340, 351-352 [262 Cal.Rptr. 783].
See In re Marriage of Carlsen (1996) 50 Cal.App.4th 212, 219 [57 Cal.Rptr.2d 630].
See, e.g., In re Marriage of Watt, supra, 214 Cal.App.4th at page 352 (finding deliberately depressed marital standard of living); In re Marriage of Smith (1990) 225 Cal.App.3d 469, 485-486 [274 Cal.Rptr. 911] (finding that parties lived beyond means during marriage); In re Marriage of Sinks (1988) 204 Cal.App.3d 586, 592-594 [251 Cal.Rptr. 379] (using earning capacity based on party’s deliberate attempt to avoid spousal support).
See Family Code section 4320; see also In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 304 [111 Cal.Rptr.2d 755].
Assembly Committee on Judiciary, Analysis of Senate Bill No. 145 (1993-1994 Reg. Sess.) as amended June 28, 1993, pages 1 and 2.
See In re Marriage of Corman, supra, 59 Cal.App.4th at page 1501.
Reference
- Full Case Name
- In re the Marriage of LINDA MICHELE and PAUL LOUIS ROMERO. LINDA MICHELE ROMERO v. PAUL LOUIS ROMERO
- Cited By
- 1 case
- Status
- Published