Tetzlaff v. Tetzlaff (In re Marriage of Tetzlaff)

In re the Marriage of KATHLEEN I. and ROBERT J. TETZLAFF.

KATHLEEN I. TETZLAFF, Appellant, v. ROBERT J. TETZLAFF, Respondent.

D076922

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

November 30, 2020

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. DS20219)

APPEAL from an order of the Superior Court of San Diego County, Maryann D'Addezio Kotler, Judge. Affirmed.

Law Office of Patrick L. McCrary and Patrick L. McCrary for Appellant.

Stephen Temko and Dennis G. Temko for Respondent.

Kathleen I. Tetzlaff (Kathy¹) appeals from findings and an order after a post-judgment hearing at which, based on a request for an order by her former spouse, Robert J. Tetzlaff (Robert), the family court found changed circumstances, terminated child support for the parties' adult child, J., set Kathy's spousal support at $0, and terminated jurisdiction. As we explain, because Kathy has not established that the court's findings of fact are unsupported by substantial evidence, the legal conclusions are erroneous, or the rulings are beyond the bounds of reason, Kathy has not met her burden of establishing that the family court abused its discretion. Accordingly, we affirm.

I. COMBINED FACTUAL AND PROCEDURAL BACKGROUND²

Kathy and Robert married in 1981 and separated more than 20 years later in 2001. Their daughter, J., was 20 years old at the time of separation and 38 years old at the time of the filing of the order on appeal.

In 2005, the parties entered into a marital settlement agreement and, in uncontested proceedings, obtained a judgment of dissolution of their marriage; the judgment incorporated the settlement agreement. In part, the agreement provided: Robert must pay Kathy monthly spousal support of $3,000; and Robert must pay Kathy monthly support of $1,734 for J., "pursuant to Family Code § 3910(a)[,] which provides for the payment ofsupport for a child of whatever age who is incapacitated from earning a living and without sufficient means."³

In 2014, the family court granted Robert's request to modify Kathy's spousal support and lowered the monthly amount to $1,700. In addition, the court also denied Robert's request to terminate adult child support for J., then almost 33 years old, and set the monthly amount at $2,002.

In 2018, more than 16 years after the parties separated and more than 12 years after the parties divorced, Robert filed a request for orders to terminate spousal support for Kathy and to modify adult child support for J., who was then almost 37 years old (RFO). In support, he submitted a memorandum of points and authorities, a declaration, and an income and expense declaration.

With regard to changed circumstances, Robert testified that, in February 2018 at a time when he was at least 66 years old, he was "forced into retirement" after having been laid off from his employment; and J. had become "fully capable of working." As to the merits of the spousal support issue, Robert first emphasized that, at the time of the parties' divorce in 2005, "and at all subsequent hearings," the family court had given Kathy at least six "Gavron warnings . . . to become self-supporting."⁴ As to the meritsof the adult child support issue, Robert emphasized that, because J. is capable of working, she is no longer "incapacitated from earning a living" (§ 3910(a)); and because she is able to earn a living, he no longer has the section 3910(a) "responsibility to maintain" her. He then argued that, given his new monthly income of $4,677 and his ongoing monthly expenses of $6,454,⁵ he could no longer afford to pay spousal support or adult child support.

Kathy opposed the RFO. In her responsive declaration, she set forth her reasons for maintaining the current spousal and adult child support and requested orders that Robert continue providing health insurance for J., reimburse Kathy for half of J.'s uninsured medical expenses, and award Kathy reasonable attorney fees. She filed a declaration from counsel in support of the attorney fees request and an income and expense declaration.

At a hearing on September 17, 2018, the court issued the following "interim orders" on Robert's RFO, pending a continued hearing in December 2018: On a monthly basis, Robert was to pay "Interim Spousal Support" of $1,000 and "Interim Child Support" of $1,800; Kathy was to establish a special needs trust for J.; and Kathy was to apply for Social Security benefits for both herself and J.

In preparation for the continued hearing in December 2018, Kathy filed a memorandum of points and authorities and additional declarations from her and her attorney. Likewise, Robert filed two declarations, one updating his income and expenses and another replying to the facts in Kathy's recent declaration.

The December 2018 hearing was continued until August 6, 2019, at which time the family court presided over a half-day evidentiary hearing. In preparation for this hearing, Robert filed an updated income and expense declaration.⁶

In January 2020, the family court filed findings and an order after the hearing on Robert's RFO (FOAH).

In the FOAH, the court first found that Robert's forced retirement constituted a material change in circumstances. The court then acknowledged that, for purposes of determining whether modification of spousal support was justified, "it must consider the criteria set forth in Family Code section 4320";⁷ and we have no reason to believe this was not done. After analyzing some, but not all, of the section 4320 factors, the court set spousal support at $0 and terminated jurisdiction to order spousalsupport. In doing so, the court found in part as follows: "[Robert] paid for [Kathy's] education enabling her to find employment as a beauty technician"; however, "[s]he has never worked outside the home"; although the parties "separated in 2001 and have been divorced since 2005" and Kathy "has received approximately six Gavron warnings," Kathy "chose not to seek employment for the last 18 years"; during this time, Kathy "has had ample time and the ability to become self-supporting." The court further found that, although Kathy "does need financial support," she received "approximately $200,000" at the time of the dissolution of marriage⁸ and "spousal support for 18 years"; and the court concluded that Kathy "failed to manage her finances in such a manner to enable her to become self-supporting" (citing In re Marriage of McElwee (1988) 197 Cal.App.3d 902, 909-910 ["just as lack of diligence in seeking employment may lead to a refusal to award spousal support [citation], so too may improvident management of assets, which were sufficient to provide self-sufficiency in the accustomed lifestyle, justify termination of support and jurisdiction even though such an order may result in an alteration in the supported spouse's lifestyle"]). Finally, consistent with the evidence in his income and expense declaration, the court also ruled that Robert "does not have the ability to pay spousal support."

With regard to adult child support, the family court granted Robert's request and terminated Robert's then-current obligations to provide section 3910(a) support for J. In principal part, the court relied on Robert's testimony that J. was able to earn a living, on the additional evidence that J. had been denied Social Security benefits on several occasions, and on therecord which lacked any expert evidence that J. was disabled or otherwise incapacitated from earning a living.

Kathy appealed from the FOAH.⁹

II. DISCUSSION¹⁰

On appeal Kathy argues that the family court erred: (1) in imputing to Kathy the ability to become self-supporting; (2) in not making specific findings as to the standard of living during the parties' marriage; (3) in terminating jurisdiction to order spousal support; and (4) in placing on Kathy, the non-moving party, the burden of proving that circumstances had not changed for purposes of determining whether adult child support could be modified. As we explain, because Kathy has not met her burden of establishing reversible error, we will affirm the FOAH.

We review an order modifying spousal support for an abuse of discretion. (In re Marriage of T.C. & D.C. (2018) 30 Cal.App.5th 419, 423.)We review an order terminating spousal support for an abuse of discretion. (In re Marriage of Pasco (2019) 42 Cal.App.5th 585, 590.) We review an order modifying adult child support for an abuse of discretion. (In re Marriage of Drake (2015) 241 Cal.App.4th 934, 939 (Drake).)

"In exercising its discretion the trial court must follow established legal principles and base its findings on substantial evidence." (In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 47, fn. omitted [modification of spousal support].) Because a "proper exercise of judicial discretion requires the exercise of discriminating judgment within the bounds of reason, and an absence of arbitrary determination, capricious disposition, or whimsical thinking" (In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 682-683 [set aside judgment]), the family court abuses its discretion when, after considering all of the circumstances, its decision " 'has "exceeded the bounds of reason" or it can "fairly be said" that no judge would reasonably make the same order under the same circumstances' " (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 480 (Smith) [modification of spousal support]).

A. Imputing to Kathy the Ability to Become Self-Supporting

Suggesting that "[t]he normal . . . retirement age here is 66" (citing In re Marriage of Shimkus (2016) 244 Cal.App.4th 1262, 1276), Kathy argues that the family court erred in imputing to her the ability to be self-supporting,...