In Re Marriage Of Stephenson

Following their 31-year marriage, Norlene Stephenson appeals that portion of an order reducing spousal support from $1,500 to $345 because of a change in circumstances arising from Leslie Stephenson's election to take an early retirement at age 59. She contends Leslie's decision to retire early from his $75,000-a-year job constituted a voluntary and deliberate attempt to reduce or extinguish his spousal support obligation, requiring the trial court to consider his earning capacity in evaluating his request for termination or modification of support. Moreover, she contends former Civil Code*fn1 section 4801, subdivision (a) (repealed by Stats. 1992, ch. 162; now Fam. Code, § 4320) was improperly applied to the facts and that, in any event, Leslie has failed to adequately prove there was a change in circumstances justifying modification of support at the time the request was made. As we shall explain, we conclude the nature of the cessation of employment, be it retirement, quitting or layoff, or whether voluntary or involuntary in character, is irrelevant when it comes to the trial court's duty to consider statutory criteria before determining support obligations. For, a spouse's obligation to continue support is predicated upon the enumerated statutory criteria including reasonable earning capacity under the circumstances, regardless whether there is evidence of deliberate avoidance of support obligations. Accordingly, we affirm that portion of the order which treats Leslie's severance pay ($52,000) as the equivalent to eight and one-half months of salary and refusing to modify the $1,500 monthly support obligation during that time, because it is amply supported by the record. However, we reverse that portion of the order reducing the monthly spousal support to $345 after the expiration of that time period; for, it was premature under the circumstances and the trial court abused its discretion in not applying the statutory criteria under former section 4801 (now Fam. Code, § 4320), including earning capacity.