Trial Court: Santa Clara County Superior Court Trial Judge: Hon. Edward Davila (Santa Clara County Super. Ct. No. FL116302)
The opinion of the court was delivered by: Elia, J.
CERTIFIED FOR PUBLICATION
Madhu Sameer appeals from the denial of her post-judgment motion to modify the judgment's spousal support order, a hybrid step-down, Richmond-type order (see In re Marriage of Richmond (1980) 105 Cal.App.3d 352), which provided for the spousal support obligation of her former husband, Sameer Khera, to terminate June 1, 2010 unless she made a good cause showing to extend spousal support.*fn1 Implicit in the parties' oral stipulation, and the judgment reflecting that agreement, was the expectation that, by June 1, 2010, Madhu would have completed her Master's degree in social work (MSW) and be able to support herself. Since Madhu did not make any showing that her ability to be self-supporting was an unrealized expectation, the court did not abuse its discretion by denying her modification request.
On October 10, 2003, Sameer filed a petition for dissolution of marriage. The parties reached a settlement agreement and, on May 18, 2007, placed it orally on the record before the court. The February 25, 2008 judgment on reserved issues reflected the parties' May 2007 agreement. It resolved issues of property division, child custody, child support, pending contempt proceedings, and spousal support.
As to spousal support, the judgment provided for monthly support of $2,650 commencing on June 1, 2007, which was annually stepped-down through June 1, 2010. For the period of June 1, 2009 through May 31, 2010, respondent Sameer was required to pay appellant Madhu monthly spousal support of $1,650. The judgment provided that "[o]n June 1, 2010, spousal support will be reduced to zero, unless, before that date, [appellant Madhu] files a motion to have spousal support continued and shows good cause as to why the Court should order spousal support to be continued." The judgment stated with regard to child care expenses: "[C]ommencing June 1, 2007, the Parties shall each pay one-half of all: (a) reasonable child care expenses incurred to permit a Party to work; (b) only through October 30, 2007, reasonable child care expenses incurred to permit [appellant Madhu] to obtain her MSW degree . . . ."
In February 2009, Madhu moved to set aside the judgment. Sameer filed opposition papers and a declaration in response to the motion. Each party filed a settlement conference statement and an income and expense declaration.
Madhu sought modification of the judgment's spousal support provisions by an order to show cause filed March 24, 2010. She requested the following relief: "Wife requests that the Court determine the Marital Standard of Living . . . and thereby set the appropriate level of support. Based on those findings, Wife requests that the Court order an upward modification of spousal support, which includes a Smith Ostler obligation. Wife requests the Court appoint an expert to assist in the determination of the same and request that Husband be ordered to advance the costs required, subject to reallocation. Further, she requests that Husband continue paying support beyond June 1, 2010 until that time that Wife can become self-supporting."
Madhu's supporting declaration stated that the parties had been married in January 1986 and Sameer had filed for marital dissolution on October 10, 2003 and they had three children. She indicated she had agreed to the parties' stipulation under duress applied by her attorney and Sameer had failed to make full financial disclosures. She asserted that the judgment's spousal support provisions were "grossly inequitable" and did not include an Ostler & Smith provision.*fn2 She stated that she was "living far below the standard" of her marriage and was "currently struggling to meet even [her] most basic of needs."
In her declaration, Madhu emphasized her husband's high earnings as an executive and his extensive cash assets. She stated that, according to his W-2 forms, Sameer earned $593,111.41 in 2006 and $545,435.66 in 2007. The attached W-2 forms showed he earned $417,160.47 in 2008. The attached income and expense declaration dated September 30, 2009 indicated that his last month's salary or wages were $18,610 and he had also received an "annual-stock 46,020, bonus 120,110," which suggests he may have been earning less in 2009 than he had in 2006 to 2008.
As to her income, Madhu stated in her declaration that she was earning $9.00 per hour as an associate social worker. She was in a clinical psychology doctoral program and able to work only about 24 hours per week. Madhu indicated that she was "$87,000.00 in debt" and "on the verge of exhausting the remainder of the cash reserve" awarded in the dissolution. She stated that she relied on Sameer's support payment to provide for her and their children's most basic needs.
Madhu declared that it was "imperative" that the court order Sameer to continue to pay "spousal support on an ongoing basis" and "grant [her] request for an upward modification of the current spousal support order" so that she could live at the marital standard of living. Her attached January 22, 2010 income and expense declaration showed that the previous month she had earned $700 in salary or wages and $1,600 in commissions or bonuses and her average monthly income in those categories varied.
Most of the memorandum of points and authorities in support of Madhu's request was devoted to attacking the judgment. As to modification of the judgment's spousal support provisions, counsel for Madhu argued that "no showing of changed circumstances is required due to the fact that the language contained in the Judgment specifically allows for Wife to seek modification of the stated order on or before June 1, 2010." Counsel alternatively contended that, even if a change of circumstances is required, "modification may be grounded on a showing of 'unrealized expectations.' " Citing In re Marriage of Beust (1994) 23 Cal.App.4th 29, counsel asserted that "[s]o long as the supported spouse has made reasonable efforts to become self-supporting, a change of circumstances may be in the form of 'unrealized expectations' in the ability of the supported spouse to become self-supporting within a certain period of time." Counsel contended that despite Madhu's fulltime enrollment in the doctoral program in clinical psychology, "she has not yet met all of the necessary requirements in order to graduate and has, therefore, not yet been able to support herself and the children" and "she is currently only able to earn $9.00 per hour." On behalf of Madhu, counsel requested the court to determine the marital standard of living, set the appropriate level of support, order an upward modification of spousal support that included an Ostler & Smith provision, and modify the existing order to require Sameer to continue paying spousal support beyond June 1, 2010 until Madhu "can become self-supporting."
Sameer filed a memorandum of points and authorities and a declaration in opposition to the application for a modification of spousal support. The memorandum represented that the parties had separated in June 2003 and they had two minor children who resided with Madhu and an adult child attending college who lived with Sameer when not attending college.
Sameer's declaration disclosed that Madhu had undergone a vocational assessment before their May 2007 agreement. The vocational assessment examination report, dated April 4, 2007, indicated that, at that time, Madhu was attending a Master's program in social work at California State University, Fresno. She had completed the required practicum hours and would complete her coursework at the end of May 2007. Madhu indicated that she still needed to complete her Master thesis and have it signed by her advisor. At one point she indicated that she would be able to earn her MSW degree by August 1, 2007 but then indicated that her Master's thesis might not be done until as late as November 2007. The report indicated that Madhu would be employable as soon as she completed her thesis at a salary of between $38,000 and $42,000 per year. Her earning capacity would increase significantly after she had completed the requisite supervised work experience and obtained licensure as a licensed clinical social worker ("LCSW"). As a LCSW, she could earn from $72,000 to $93,000 per year.
Sameer's declaration stated that forensic CPA Sally White determined in May 2007 that Madhu "required $44,193 annually to maintain [the parties'] marital standard of living." He asserted that "instead of pursuing employment that would permit her to be self-supporting, [Madhu] decided to seek her PhD." His declaration also indicated that under their settlement, Madhu received about $500,000 and substantial unexercised vested stock options and she would receive half of the net proceeds of two properties when sold.
In support of modification, Madhu's counsel argued at the hearing on May 6, 2010 that the family court was "absolutely obligated to go through the [section ] 4320 factors to determine whether or not the original support amount met [his] client's needs based on the marital [living] standard." After argument, the court denied the motion because it did not find there was sufficient evidence to modify the spousal support prospectively. The court noted that the motion to set aside the judgment was calendared and "depending on what happens on that motion, it may then be appropriate to revisit the issue of support . . . ." Madhu's counsel asked, "is the Court making a finding that it is not required to analyze the 4320 factors?" The court replied that it was "not making any finding" and it had made its order. A formal order was filed.
On appeal, Madhu argues that the trial court abused its discretion.