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In re Marriage of Blazer

August 25, 2009


(Monterey County Super. Ct. No. DR38292). Trial Judge Honorable Adrienne M. Grover.

The opinion of the court was delivered by: McAdams, J.


In this marital dissolution case, both parties challenge a spousal support order. In her appeal, the wife asserts that the trial court abused its discretion in reducing temporary spousal support and in setting permanent support. She contends that the court failed to account for all of the husband's income and that it erred in imputing investment income to her. In his cross-appeal, the husband contends that the permanent spousal support order unfairly charges him a second time for earnings from the business that he operates. In his view, since the wife received half of the business's going-concern value in the property division, the court should not consider the entire stream of business income in assessing his ability to pay support. The husband asks us to announce a new rule in California prohibiting such "double dipping."

Rejecting both parties' contentions, we affirm the challenged order. In the published part of the opinion, we conclude that the trial court acted within its discretion in determining the husband's income for purposes of spousal support.


The parties to this appeal are Scott Blazer (husband) and Karen Nickles Blazer (wife). Husband and wife married in November 1982 and separated in January 2002. There are two children of the marriage, both now adults.

The principal marital asset was a company created in 1996 by husband and a business partner, called Blazer-Wilkinson LLC (BW). BW is a brokerage company that buys and sells produce, principally strawberries and bush berries. In 2004, the court valued the community interest in BW at $5.6 million.

2002 -- Dissolution; Temporary Support

On January 31, 2002, husband petitioned for dissolution of the marriage in Monterey County Superior Court. In October 2002, the marriage was dissolved.

At a hearing in July 2002, husband was ordered to pay wife "guideline temporary spousal support in the amount of $57,224 per month, plus $6,500 a month for child support, effective June 1st." The child support award was for the parties' younger child, a son, who was still a minor when these proceedings were instituted. The following month, child support was increased to $8,000 per month.

2004 -- Decision after Trial

In December 2003, Judge John Phillips conducted a trial that addressed several issues, including spousal support and valuation of the community interest in BW.

In a decision issued in February 2004, Judge Phillips valued the community's interest in BW at $5.6 million. Concerning spousal support, Judge Phillips determined that this was "a marriage of long duration with a substantial standard of living." The judge found it "premature to now make a permanent spousal support order." He anticipated that another "five to six months should be enough time to provide the necessary answers" for that determination. In the meantime, the judge reduced temporary support to $52,000 per month, effective February 1, 2004.

The parties thereafter stipulated to a reservation of jurisdiction to modify support retroactive to August 15, 2004.

2005 -- Property Settlement

Following a mediation held in October 2004, the parties "reached a settlement of the property aspects of their case," which was "memorialized and confirmed" in a stipulation and order filed in June 2005. Husband received the community interest in BW. Wife received all of the remaining property, plus an equalizing payment of approximately $1.34 million.

2006 -- Decision after Trial

In December 2005 and January 2006, Judge Adrienne Grover conducted a trial on the remaining issues, principally permanent spousal support. At the conclusion of the trial, the judge rendered a decision from the bench.

More than six months later, in August 2006, a statement of decision was filed. Consistent with the judge's oral pronouncement, the written statement of decision made several determinations relevant to this appeal. First, it rejected husband's "double-dipping" argument against awarding spousal support on BW's excess earnings. In addition, the decision confirmed Judge Phillips's earlier determination that the parties enjoyed a "substantial" marital living standard, declining to describe it with any greater specificity. The statement of decision also addressed each party's earning capacity and included a finding that wife "has the potential to earn $35,000 per year in accounting or retail positions, assuming that her health permits her to work full time." It further concluded that wife would "receive significant investible assets" and that "distribution" of the property was "commencing" with each party apparently "operating in good faith to achieve that distribution." The statement of decision characterized as "reasonable" the "projections of [wife's] future income after the asset distribution is complete." In addition, it treated husband's investments in BW to capitalize and vertically integrate the business as "reasonable expenses that should not be charged against [his] income but rather should be taken out of the company before assessing what his reasonable income is for purposes of support." With respect to wife's needs, the court noted that her September 2005 income and expense statement showed living expenses -- as distinguished from savings and investment -- of $20,000 per month, which the court found "reasonable and generally consistent with the lifestyle the parties enjoyed during the last five years of the marriage . . . ."

Temporary spousal support was reduced to $30,000 per month, retroactive to August 15, 2004. Permanent spousal support was set at $20,000 per month, starting January 1, 2006.

2007 -- Order; Appeals

In March 2007, the court entered a formal order that was consistent with its August 2006 statement of decision, entered after the trial held in December 2005 and January 2006. The order reduces temporary spousal support from $52,000 per month to $30,000 per month, effective August 15, 2004 (consistent with the parties' prior stipulation permitting modification retroactive to that date); it sets permanent spousal support at $20,000 per month, effective January 1, 2006.

In May 2007, wife filed a notice of appeal and husband filed a notice of cross-appeal. The following month, husband asked this court to dismiss wife's appeal as untimely on the ground that the March 2007 order merely formalized the court's earlier ruling. We denied husband's dismissal motion.


In her appeal from the May 2007 spousal support order, wife argues that the trial court abused its discretion (1) in excluding part of husband's income when considering his ability to pay support and (2) in imputing investment income to her.

In response to wife's appeal, husband defends the order against the two arguments that she offers. He also asserts that wife has forfeited her claims by failing to comply with appellate rules. In his cross-appeal, husband challenges the order on the same ground offered below -- that it permits wife to unfairly "double dip" into the income stream from his business. He posits this challenge as an issue of first impression in California and a question of law.


To establish the proper framework for our analysis, we begin by summarizing the applicable legal principles before turning first to wife's appeal and then to husband's cross-appeal.

I. Legal Principles

A. Spousal Support

The trial court is authorized to order and to modify temporary and permanent spousal support, as provided in the Family Code.*fn2

1. Temporary Support

The trial court has statutory authority to order temporary spousal support while a marital action is pending. (§ 3600.) "Temporary support . . . usually is higher than permanent support because it is intended to maintain the status quo prior to the divorce." (In re Marriage of Schulze (1997) 60 Cal.App.4th 519, 522.) The trial court has broad discretion to determine the amount of temporary spousal support, considering both the supported spouse's need for support and the supporting spouse's ability to pay. (In re Marriage of Dick (1993) 15 Cal.App.4th 144, 165.)

2. Permanent Support

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." (In re Marriage of Nelson (2006) 139 Cal.App.4th 1546, 1559; In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 302.) The statutory factors include the supporting spouse's ability to pay; the needs of each spouse based on the marital standard of living; the obligations and assets of each spouse, including separate property; and any other factors pertinent to a just and equitable award. (§ 4320, subds. (c)-(e), (n).) "The trial court has broad discretion in balancing the applicable statutory factors and determining the appropriate weight to accord to each, but it may not be arbitrary and must both recognize and apply each applicable factor." (In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 207.)

B. Appellate Review

As a general rule, we review spousal support orders under the deferential abuse of discretion standard. (In re Marriage of Nelson, supra, 139 Cal.App.4th at p. 1559.) We examine the challenged order for legal and factual support. "As long as the court exercised its discretion along legal lines, its decision will be affirmed on appeal if there is substantial evidence to support it." (In re Marriage of Duncan (2001) 90 Cal.App.4th 617, 625; In re Marriage of Geraci (2006) 144 Cal.App.4th 1278, 1286.) "To the extent that a trial court's exercise of discretion is based on the facts of the case, it will be upheld "as long as its determination is within the range of the evidence presented.' " (In re Marriage of Ackerman, supra, 146 Cal.App.4th at p. 197.)

Where a question of law is presented on undisputed facts, appellate review is de novo. (See, e.g., Elsenheimer v. Elsenheimer (2004) 124 Cal.App.4th 1532, 1536 [interpretation of child support statute presents question of law]; In re Marriage of Von der Nuell (1994) 23 Cal.App.4th 730, 736 [on undisputed facts, date of separation is a question of law]; cf. In re Marriage of Duncan, supra, 90 Cal.App.4th at p. 625, fn. 5 [rejecting wife's bid for de novo review where the evidence was in conflict].)

With those principles in mind, we consider the issues raised here. We begin with wife's appeal.

II. Wife's ...

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