The Court of Appeals Finds Trial Court’s Order “Puzzling”
Husband and wife’s marriage dissolved in 1992. In 2009, the now ex-husband filed an OSC to modify or terminate his spousal support obligation, because he planned to retire. The trial court denied the OSC, while ordering the 66-year old ex-wife to make efforts to become self-supporting, and also ordering spousal support to be reduced after a period of one year. The trial court also ordered ex-husband to pay $13,000 towards ex-wife’s attorney’s fees. Ex-husband appealed, maintaining that the court’s order was an abuse of discretion, and that spousal support should have been terminated altogether. In re Marriage of Horowitz, Case No. G043127 (4th Dist. Div. 3 4/4/11) (unpublished.)
The Court of Appeal agreed that the spousal support order should be reversed, but for a different reason – the trial judge changed the spousal order without reaching any conclusion about whether there had been a change in circumstances. “[D]ue to the lack of any specific findings of changed circumstances,” commented the Court of Appeals, “the order on its face presents a puzzling inconsistency.” The trial judge had denied the OSC, and ordered continued payment of support obligations at the existing level – a conclusion that was hard to square with an implied finding that the ex had failed to prove a material change of circumstances, yet his obligation to support would be reduced at a future date by $500 – which would have required a conclusion that there had been a change in circumstances.
As to the attorney’s fees award, the trial judge had not specified the reasons for awarding attorney’s fees. The Court of Appeal deduced that, since the husband had partially prevailed on his OSC, because spousal support was to be modified downward in the future, attorney’s fees were not awarded under section 271 (bad faith or frivolous motion). Instead, it assumed that the ward was based on a “needs and ability” analysis under section 2030. Such as an award in a dissolution proceeding is reviewed for “abuse of discretion” – a standard that the ex-husband could not overcome.
The opinion was authored by Presiding Justice O’Leary, with Justices Moore and Fybel concurring.