Pacillas v. Pacillas (In re Marriage of Pacillas)

In re the Marriage of ALEJANDRO and ORIVEL PACILLAS.

ALEJANDRO PACILLAS, Appellant, v. ORIVEL PACILLAS, Respondent.

F080634

California Court of Appeals, Fifth District

August 31, 2021

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Tulare County. No VLF230006 Melinda Myrle Reed, Judge.

Alejandro Pacillas, in pro. per., for Appellant.

Kahn Soares & Conway and Carla R.D. Khal for Respondent.

OPINION

THE COURT ^[*]

In this marriage dissolution proceeding, appellant contends the trial court erred in denying his 2019 motion to terminate spousal support. In 2013, spousal support was reduced on appellant's motion from $600 to $350 monthly. In his 2019 motion, appellant alleged two related changes of circumstances that he contended justified a termination of support: that respondent's income had increased and that she had failed to achieve self-sufficiency within a reasonable amount of time after receiving a Gavron warning^[1]in 2013. In denying the motion, the trial court found appellant had not carried his burden of proving a material change of circumstances because respondent had made sufficient efforts to become self-supporting.

We find no abuse of discretion and affirm the order denying appellant's motion.

FACTS

The judgment of dissolution

Appellant and respondent were married on October 2, 1993, and separated on August 27, 2008. Their marriage produced no children. The court entered a judgment of dissolution of marriage on July 17, 2009.

A written stipulation for judgment between the parties concerning spousal support and property division issues was attached to the judgment. Appellant was to pay respondent $600 per month until death of either party, respondent's remarriage, or further order of the court. Appellant was earning $6, 123 per month gross and respondent was earning $3, 038 per month gross at the time of judgment.

Respondent was awarded the marital residence, valued at $184, 000 and subject to an indebtedness of $67, 925, and was ordered to make an equalization payment of $51, 801 to appellant in consideration for his releasing his interest in the house. The record does not show when or for how much the marital residence was purchased.

2013 spousal support reduction

On January 9, 2013, appellant filed a motion under Family Code section 4323, subdivision (a)(1), ^[2] to modify the spousal support order based on a change of circumstances. He contended respondent had been cohabitating with her boyfriend for over a year and requested either a termination or substantial reduction in spousal support. He further stated he had been paying spousal support for nearly four years and claimed respondent had had sufficient time to become self-supporting. On April 22, 2013, the court issued a written order finding a substantial change of circumstances and reduced support to $350 per month.

The court's order methodically set forth factual findings relevant to the applicable section 4320 factors. The court found appellant had a greater earning capacity and respondent had limited potential for career advancement. The court also found appellant was “self supporting” with a monthly income of $7, 232 and expenses of $5, 499, and respondent was “nearing a status of being self supporting” with a monthly income of $3, 448 and expenses of $3, 078.^[3] Both parties appeared to be maintaining a “middle level standard of living” and both had “moderate savings.” The court further found respondent's earning limitations and lack of significant assets and the length of the marriage (14 years, 10 months) justified continued but reduced spousal support.

Respondent's declaration filed in March 2013 in connection with appellant's motion stated she was paying $1, 050 in rent and $285 in utilities for a house in Bakersfield, with no additional housing expenses. In January 2012, she moved into the Bakersfield house with her boyfriend and was renting out the marital residence. She stated the monthly house payment at the marital residence was $930 and the utilities totaled $290. She did not state how much rental income she received from the marital residence, but nevertheless declared she rented it at an unspecified loss. She also declined to state the marital residence's fair market value. She declared she was in the process of moving out of the rented house in Bakersfield and back into the marital residence.

Among her other expenses in March 2013, she was spending $50 per month on clothing and $223 per month on auto expenses and transportation. She also paid $600 per month toward a combined balance of $3, 419.57 on two credit cards, one from Chase Freedom and the other from Lowes. She declared she had a “minimal” amount of money in cash and checking accounts and other savings; she did not specify a dollar amount.

The court gave respondent a Gavron warning on the record at the hearing on the motion. The transcript of this hearing is not in our record, but both parties and the trial court acknowledged during the 2019 motion proceedings that respondent received a Gavron warning from the court in 2013.

2019 motion to terminate support

On September 19, 2019, appellant filed another motion to terminate spousal support based on a change in circumstances. This is the motion giving rise to this appeal. Appellant specifically sought to terminate spousal support and the court's jurisdiction to award spousal support to respondent. The alleged changed circumstances were that respondent's income had increased and that she had had a “reasonable amount of time” since receiving the Gavron warning in 2013 to become self-supporting.

Appellant's signed declaration in support of his motion averred that respondent had been promoted at work, her income had increased to $5, 309, and she was at the top step of her pay rate and eligible to pursue a supervisory position.

The motion and appellant's supporting declaration were prepared on Judicial Council forms. Appellant's counsel additionally submitted a memorandum of points and authorities in support of the motion. Counsel stated respondent had recently purchased a home in Visalia for $435, 000 on March 15, 2019, and contended this purchase helped demonstrate respondent “ha[d] achieved and has went well beyond ‘self-sufficient' status.” Appellant's declaration did not contain these facts, and no exhibits or other evidence was submitted with the moving papers to prove this purchase.

Respondent filed a responsive declaration and an income and expense declaration. Her submitted pay stub showed monthly gross pay of $5, 495 and net pay of $3, 426.50. She averred she had been working for the State of California for 19 years and was “working at the top position available to [her].” While she was qualified for a promotion to the next higher position, promotions in her office were based on seniority and there were many people with more seniority.

Her income and expense declaration detailed $5, 902.71 in actual monthly expenses. She had a monthly home mortgage payment of $1, 597.71, plus $450 in real property taxes, $95 in homeowner's insurance, and $250 in maintenance and repair costs, for a total of $2, 392.71 per month in housing expenses. Her declaration stated she had recently sold the marital residence to move “to another, safer part of town where she will be near family members” and because the utility bills in the marital residence were “cost prohibitive” for her. She did not disclose how much she sold the house for nor how much profit she netted, if any.^[4]

She paid $820 per month toward a combined balance of $4, 981 on two credit cards, one from American Express and the other from Visa. She no longer owed balances on the Chase Freedom or Lowes cards. She also owed a balance to a furniture store of $5, 269 for a “bed/mattress” and paid $103 per month toward that debt. Thus, she paid $923 per month total toward credit balances. She also spent $350 per month on clothes and $800 per month on auto expenses and transportation.

Respondent also claimed in her income and expense declaration to have only $400 cash in savings. She listed no stocks, bonds, or other assets she could easily sell, and no amount of other property, real or personal.

Respondent stated in her declaration she relied on spousal support “to help meet [her] living expenses.” She said she would be living below the marital standard of living if she did not receive spousal support. She stated her “brief” period of cohabitation with her boyfriend had ended, and requested the court increase her spousal support award “based on the current financial circumstances of both parties.”

The order appealed from

On November 26, 2019, the court conducted a hearing on appellant's motion, and issued a written order on December 4, 2019. The order acknowledged the court must consider the factors enumerated in section 4320 when ruling on a request for modification of a spousal support order. The order then set forth the court's factual findings.

First the order “adopt[ed] the findings made in 2013” in appellant's prior support modification motion including the finding that appellant has a greater earning capacity and that respondent's potential for advancement is limited. The court found appellant's monthly income of $11, 838 and expenses of $10, 437 indicated he was self-supporting, while respondent's monthly income of $5, 494 and expenses of $5, 902 indicated she was “not self-supporting.” The court stated it “t[ook] into consideration respondent's recent purchase of a new home of over $400, 000.00 resulting in a fairly high mortgage payment.” The court noted respondent's income had increased by $2, 046 per month since 2013 but did not note the amount by which her expenses had increased ($2, 824).

The court...