Maher v. Strawn (In re Maher)

63 Cal.App.5th 356

277 Cal.Rptr.3d 689

IN RE the MARRIAGE OF David MAHER AND Laurie STRAWN.

David Maher, Appellant,

v.Laurie Strawn, Respondent.

D076487

Court of Appeal, Fourth District, Division 1, California.

Filed April 22, 2021

Certified for Partial Publication.^*

Law Office of Patrick L. McCrary and Patrick L. McCrary, La Mesa, for Appellant.

Stephen Temko, San Diego, for Respondent.

DATO, J.

David Maher appeals from a judgment of dissolution of his marriage with Laurie Strawn. He primarily contends there is insufficient evidence to impute income to him and to step down the spousal support he is receiving.

In determining Laurie's ability to pay David support, the court took into account numerous circumstances, including that Laurie was spending about $3,000 per month for their adult son's college expenses. The interesting question this case poses is whether the court may properly consider that expense in determining her ability to pay spousal support. There is conflicting authority on the issue. (Compare In re Marriage of Paul (1985) 173 Cal.App.3d 913, 219 Cal.Rptr. 318 ( Paul ) with In re Marriage of Serna (2000) 85 Cal.App.4th 482, 102 Cal.Rptr.2d 188 ( Serna ).)

The trial court determined that the better reasoned cases—not the least of which is the Supreme Court's decision in In re Marriage of Epstein (1979) 24 Cal.3d 76, 154 Cal.Rptr. 413, 592 P.2d 1165 ( Epstein )—indicate that the court has discretion to consider an adult child's college expenses like any other expenditure of discretionary income. The ultimate question in determining ability to pay is whether the expense is reasonable and will result in a just and equitable award of spousal support.

The main argument to the contrary is that supporting an adult child reduces the supporting spouse's available funds to pay spousal support. The supported spouse, so the argument goes, is in effect being compelled to pay adult child support, which the law prohibits. ( Serna, supra , 85 Cal.App.4th at p. 488, 102 Cal.Rptr.2d 188.)

We acknowledge, of course, that David cannot be required to support his adult child. Family Code ¹ section 3901, subdivision (a) prohibits that. But the question here—whether Laurie's choice to spend her discretionary income on their adult child's educational expenses may be considered on equal footing with her other expenses—is distinctly different. As explained, both Epstein and section 4320 compel the conclusion that a trial court may appropriately consider a supporting spouse's payment of adult children's college expenses in determining ability to pay spousal support.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Parties

After an 18-year marriage, David and Laurie separated in 2016. They have two children—a son who at the time of trial was 20 years old, and a daughter then age 18.

David, who is now 60 years old, has a Ph.D. in biochemistry and is also a lawyer. He was the primary earner during the early years of the marriage. From 1999 to 2008 he worked as a patent attorney, the last two years as a sole practitioner in Maher Law. In 2004 after he earned $215,000, the couple bought a $1.8 million home.²

About that same time, David began committing acts of domestic violence. Laurie logged the "major incidents" on her computer. She stopped keeping the diary in 2007 explaining, "He was hitting me so often I didn't have time to log events any longer."³

In 2006 David was earning over $100,000 per year; however, he stopped working in 2008 because of "health issues." Maher Law is "defunct" and owes back taxes.

David has sleep apnea, insomnia, post-traumatic stress disorder (PTSD), anxiety, and severe depression. He testified that crowds, traffic, and noise make him nervous, afraid, and exacerbate his anxiety and PTSD. He remains mostly alone in his apartment and has to "force" himself to socialize. Yet on cross-examination, David admitted traveling to Las Vegas in 2018 where he attended an indoor rock concert. He also attended "a few concerts" at the Del Mar fair with a "social group" and at the House of Blues.

David takes Valium "a couple times a day," along with anti-depressants, anti-anxiety drugs, and hydrocodone—an opioid. He also drinks "three to four" glasses of wine nightly, although he denies having a "drinking problem." David could not "recall" whether any physician told him to not mix alcohol with his medications. He spends about $600 per month on wine—three times his child support obligation. David testified that his PTSD and anxiety disorder prevent him from working. And his sleep apnea and insomnia preclude him from working regular hours because he is "exhausted" and "unfocused."

Still, David has worked occasionally as a track and field coach, which he enjoys. In 2018, for example, he earned about $1,000 as a high school track coach and was named "field coach of the year." He is certified to coach through the college level. In 2017 David obtained a substitute teaching certificate, but he never sought those jobs because he does not awaken until noon (due to his sleep disorder). He is unwilling to work tutoring grade school or high school students, stating he has "patience issues."

Bernard A. Michlin, M.D. "looked briefly at some medical records" and spent 75 minutes interviewing and examining David. Michlin did not independently diagnose David, nor did he contact any of his treating physicians. Michlin opined that David has major depressive disorder, PTSD, and anxiety that "can be extremely disabling" and which precludes him from "any meaningful" employment in his area of law and intellectual property. Michlin testified that David's alcohol consumption was not a concern because it would help him sleep.

Michlin believes David can do simple and repetitive work, like filing papers, scanning documents, and data input. He also believes David is capable of working as a part-time track and field coach. Michlin has "significant hope" that David's conditions will improve. He believes that working full time would ameliorate David's sleep disorder, anxiety, and depression.

Laurie holds a Ph.D. and since 2004 has been employed by a pharmaceutical company. She currently earns about $28,000 per month.

The parties separated in 2016. The triggering event was when David (who is six feet, three inches tall, and weighs about 300 pounds) punched Laurie in the face and slapped her during intercourse. Her nose bled "all over the bed." The next day, he assaulted their son (then 17 years old). Both David and the son sustained injuries in the ensuing fist fight. Laurie told responding police officers, "My nose still hurts, and I think it might be broken. Today he was worse than usual." Despite David's testimony at trial denying that he ever hit Laurie, in September 2016 the court issued a domestic violence restraining order against him.

Laurie supports the parties' adult son, who attends a state university. She pays about $35,000 per year for his tuition and living expenses. She also supports their daughter, who at the time of trial was graduating from high school and would be attending a private university where tuition and living expenses will be about $50,000 a year.

B. Dissolution Litigation

In June 2016 Laurie filed for dissolution of marriage. About a week later, David filed his own petition.⁴ In December 2016 the court imputed $1,733 per month to David, finding he "has the ability and opportunity to earn minimum wage." The court also ordered Laurie to pay $4,376 per month in spousal support. Effective January 2017, the court increased that to $6,218 per month.

After a five-day trial, in July 2019 the court issued a statement of decision. It found David's testimony "not credible" and his retained medical expert, Dr. Michlin, to be "too much of an advocate." The court noted that David's trips to Las Vegas and the county fair "belie his contention he cannot function in crowds or when overstimulated." Conversely, the court found Laurie credible, noting "[s]he answered questions directly and without hesitating."

The court ordered Laurie to pay $4,000 per month in spousal support for one year (until May 1, 2020), reduced to $3,500 until May 1, 2021, and further reduced to $2,500 per month thereafter. The step-down order reflected "the court's conclusion [that David] can become fully employed if he applies himself to overcoming his limitations." The court issued a Gavron warning,⁵ admonishing David that "he has an obligation to become self-supporting within a reasonable time."

The court imputed $1,000 per month of income to David, noting that his recent work as a high school track coach demonstrates "he can obtain employment" requiring "intellect." It observed that this was less than "one-half minimum wage" and that minimum wage jobs generally require "less skill and intellect than coaching and officiating track."

Although noting that Laurie has "an income to pay significant support," the court considered that she will be spending "substantial after-tax sums for [David's] children's education." It further determined that "sending children to college is at least as much of the marital standard of living as the marital home, vacations, what cars they drive, how often they go out to eat, etc." Citing section 4320, subdivision (n), the court concluded it had discretion to consider Laurie's payment of the adult children's college expenses when determining David's spousal support.⁶

DISCUSSION

A. In Determining the Amount of Spousal Support, the Court May Consider the Supporting Spouse's Payment of Reasonable Educational Expenses for Adult Children.

" ‘Permanent spousal support "is governed by the statutory scheme set forth in sections 4300 through 4360. Section 4330 authorizes the trial court to order a party to pay spousal support 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, taking into consideration the circumstances set forth in section 4320." [Citations.] The...