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In re Marriage of Kacik

November 19, 2009


Appeal from an order of the Superior Court of Orange County, Nancy A. Pollard, Judge. Reversed and remanded with directions. (Super. Ct. No. 99D005060).

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



A spousal support order was scheduled to step down to zero in mid-February 2008. The trial court modified the order to keep the spousal support at the level it had been prior to mid-February 2008, based on the "change of circumstances" that a child support order had terminated . . . seventeen months earlier. The trial court's authority for doing so was Family Code, section 4326, a relatively new statute in the Family Code.*fn1 The supporting spouse has brought this appeal from the order of modification.

There are times when the definition of "is" really makes a difference. This case is one of them. The key word in section 4326 is . . . is.

Section 4326 provides that:

(1) when the court has jurisdiction to order spousal support and

(2) "if a companion child support order is in effect" -- italics added -- then the termination of child support because the child reaches the age of majority constitutes a change of circumstance that "may be the basis for a request for modification of spousal support."*fn2

This is a case of first impression. The question of first impression is what the Legislature meant by the words "if a companion child support order is in effect," and particularly what it meant by the phrase, "is in effect." Or, put another way: How much time can elapse before is becomes was?

As we explain in detail below, the phrase "is in effect" should not be narrowly construed to deprive the family court of jurisdiction to make an order under section 4326 just because the child has already reached the age of the majority, even though, under section 3601, a child support order is, technically, no longer "in effect" the day after a child reaches the age of majority. Thus a family law court is not deprived of jurisdiction to make an order under section 4326 simply because a child, for example, turned 18 a few days before the supported spouse made a request for modification under section 4326.

Rather, the statute should be broadly construed to implement its purpose, which was to allow for the possibility of modified spousal support generally upon the event of the discontinuation of child support. In that regard, we divine that the Legislature intended that reasonable contemporaneousness with the discontinuation of child support is enough to give the family law court jurisdiction to make a spousal support order under section 4326.

Even so -- the particular facts in this appeal force us to ask just how long a supported spouse may wait after a child support order is no longer "in effect" to bring a proceeding to modify spousal support under section 4326. A few months? Under the rule of general contemporaneousness, we think we are safe to say that a few months would be within the purview of the statute.

But more than a year? As we show below, by comparison to other important deadlines in the Family Code, it would do violence to the Legislature's use of the phrase "is in effect" -- present tense -- to say that a modification proceeding more than seventeen months after the companion child support order ceased to be in effect was within the purview of section 4326. The definition of "is" cannot be stretched to include something that became past tense seventeen months ago. Consequently we conclude that the trial court's order modifying support in this case -- where the child support order ended in August 2006 and no modification request was brought until February 2008 -- cannot be sustained on the basis of section 4326. And section 4326 was the sole basis for the modification, so the order cannot be sustained at all.

I. Background

Laurie and Richard Kacik were married in June 1983, and separated in May 1999, for a 16-year marriage. They had one child, Alexander, then age 11, born August 1988. They were divorced pursuant to a stipulated judgment filed June 8, 2001. Each was represented by counsel. The stipulated judgment provided for $1,125 a month in child support from Richard to Laurie, which was to last until Alexander reached the age of 18. Richard was also to pay Laurie $1,625 in spousal support for seven years, after which spousal support was to be reduced to zero on February 15, 2008, but the court was to retain jurisdiction over support until death, remarriage or further order of the court. At the time of the separation Laurie was 46 years old, not working and earning "zero," but the stipulated judgment recited that she had "the ability to earn not less than $1,000 per month in gross income." Richard was making $11,336 gross income a month.

The child support order terminated in August 2006, apparently as a result of the couple's son Alexander having reached the age of 18. About seventeen months later, on February 15, 2008 -- the precise date that the spousal support award was scheduled to step down to zero -- Laurie, represented by counsel, filed an order to show cause proceeding (commonly called an "OSC"), the main objective of which was a modification of spousal support to $2,000.*fn3 Laurie's declaration in support of the order to show cause made these statements and assertions in support of her modification request:

(1) "In August 2006, child support for our son terminated."

(2) "I have attempted to become self-sufficient and presently work full time. I, however, can not find a position that pays more than my present $15.00 per hour."

(3) "If spousal support were to be reduced to zero, pursuant to the existing judgment, I would be forced to sell my residence (in the middle of a very weak market) and move out of Orange County. It would be impossible to live on my current income."

(4) "I require continued spousal support from [Richard] in order to afford the basic necessities of life."

By the time of Laurie's OSC in mid-February 2008, she had obtained full-time employment in a shop in San Juan Capistrano earning $15 an hour, was working a 40-hour week, and was 55 years old. Her declaration in support of her OSC provided no information (beyond the statement that she "could not find a position" that pays more than $15 an hour) regarding any efforts by Laurie to gain additional education or skills. Her income and expense declaration listed the completion of high school as her highest level of education.

The initial date for the hearing on Laurie's OSC was scheduled for April 21, 2008. Richard filed a responsive declaration asserting that he was paying for all the costs of Andrew's education at Cal Poly San Luis Obispo, and had relied on the 2001 judgment in undertaking to shoulder the cost of the couple's son by ...

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