Spousal Support Is Not Automatic

An unpublished opinion out of Los Angeles County sheds some light on the assessment the court is supposed to perform when ruling on spousal support. The opinion is enlightening for the fact that is tells us that spousal support is not a foregone conclusion in every case. Jennifer and Dennis married in January 2001. Dennis filed a petition for dissolution of the marriage on December 12, 2007. The petition stated the date of separation was January 2, 2005. On October 16, 2009, Jennifer filed a response which stated that the date of separation was March 1, 2007. Jennifer also filed an order to show cause requesting an award of temporary spousal support retroactive to the date that Dennis filed the petition for dissolution. In November 2009, Dennis opposed the request for temporary spousal support and filed a responsive declaration. He stated that he has rented the same 1000 square-foot house for the past nine years. During the marriage, Jennifer and Dennis did not own a house, had one personal car, no savings, traveled very little, and had few possessions. Dennis had the use of a vehicle through his work. Their furniture consisted of used items from friends or Jennifer's family, items purchased at garage sales, and some new items from stores such as IKEA. Jennifer's parents paid for their trip to Ireland, including airline tickets, accommodations, and spending money. They went to Las Vegas together four times, including their wedding. Except for one trip together to a NASCAR race, he attended NASCAR races alone and shared expenses with his male friends on the trip. In 2005, Jennifer and Dennis moved into separate bedrooms. Jennifer was spending significant time with a personal trainer named Trevor. Dennis paid Jennifer's expenses during this time. Jennifer moved into her own apartment in March 2006. Dennis paid the first and last month's rent, as well as the security deposit for the apartment. Dennis agreed to pay for the car, which she drove, and her car insurance until their divorce was completed. He paid their community debts without any contribution from Jennifer. He kept an old computer and bought her a new computer. Dennis helped her make loan payments on a student loan while she was adjusting to living on her own. He also paid her rent for a period of time so that she could build up a financial cushion. She took money from their joint account for her expenses and Trevor's expenses. A hearing was held on November 17, 2009. The trial court ruled that Jennifer had made no showing of need and Jennifer's cohabitation was a factor that decreased her need. Dennis paid a substantial amount of money to maintain the status quo since the time of the separation. There was no showing that the marital standard of living was substantially higher than the standard of living that Jennifer currently enjoyed. Therefore, the court denied the request for temporary spousal support. The trial court's decision was upheld by the appellate court. The trial court has broad discretion to award temporary spousal support and may order "'any amount' based on the party's need and the other party's ability to pay. [Citations.]" (In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1327; Fam. Code, § 3600.) An award of temporary spousal support "'is utilized to maintain the living conditions and standards of the parties in as close to the status quo position as possible pending trial and the division of their assets and obligations.' [Citation.]" (In re Marriage of Murray (2002) 101 Cal.App.4th 581, 594.) The court is not required to consider and weigh statutory factors as it does with permanent spousal support. (In re Marriage of MacManus (2010) 182 Cal.App.4th 330, 335.) An award of temporary spousal support rests within the broad discretion of the trial court and will not be reversed on appeal absent a showing of a clear abuse of discretion. (In re Marriage of Wittgrove, supra, 120 Cal.App.4th at p. 1327.) "[I]n exercising its broad discretion, the court may properly consider the 'big picture' concerning the parties' assets and income available for support in light of the marriage standard of living. [Citation.]" (Ibid.) "Trial courts may properly look to the parties' accustomed marital lifestyle as the main basis for a temporary support order. [Citations.]" (Ibid.) In this case, Jennifer sought temporary spousal support calculated as of January 2008. However, she failed to demonstrate a need for temporary spousal support. The evidence showed that Dennis paid monthly rent of $1,320 for the house where the parties lived during their marriage, while Jennifer paid monthly rent of $1,450 for her apartment. There was no showing that Jennifer cannot afford housing comparable to the parties' living arrangements during marriage. Her need was decreased by the fact that her cohabitant pays half of her monthly rent. In fact, the evidence showed that there are months that Jennifer can afford to pay her cohabitant's utility expenses. During the marriage, the parties shared the use of one personal car, of which Jennifer now has sole possession. Jennifer has a newer computer now than the parties owned during their marriage. She has the pool table that she referred to in her declaration on the marital standard of living. There is no evidence that Jennifer does not have and cannot afford a television or a personal trainer. The only significant trip that the couple took together during their marriage was paid for by Jennifer's parents. There was no evidence as to how often Jennifer and Dennis dined out during their marriage or how much they spent on groceries. Although Jennifer declared that her average monthly expenses for dining out were $25, she stated during her deposition that she had eaten out approximately 20 times in that month. Jennifer failed to show that she cannot dine out, rent comparable accommodations, or otherwise enjoy the standard of living that she and Dennis enjoyed during their marriage. Jennifer contends that a determination of the amount that Dennis paid on her behalf after separation is required. However, because Jennifer failed to demonstrate a need for temporary spousal support, it is unnecessary to credit Dennis for any amount that he paid on her behalf after the parties' separation. The trial court also did not need to determine the date of separation, because Jennifer failed to show a need for support after January 2008, regardless of which date of separation is used. There is no issue on appeal concerning Jennifer's need for an award of attorney fees. We note that after the dissolution petition was filed in 2007, the evidence showed Dennis worked 40 hours per week, plus overtime, while Jennifer was underemployed in her skin care business by choice. Please click here to read to original Vitt opinion. For more information on California divorce law visit Hardinglaw.com.

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