gno.law

In re Marriage of Nussbaum CA4/1

California Court of Appeal · D067550 · 2015-09-30 · Unpublished

Proceeding
appeal from an order
Trial court
Superior Court of San Diego County · No. D486177
Trial judge
Cindy D. Davis
Outcome
affirmed — Affirmed.
Area
family
Panel
Gilbert Nares (author), Richard D. Huffman, Sr., Judith D. McConnell

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T02:54Z · confidence high

The trial court reduced, but did not terminate, Steve Nussbaum's spousal support obligation to Estefania Nussbaum, finding a material change in circumstances due to his retirement and her financial need. The Court of Appeal affirmed the order, holding that the trial court did not abuse its discretion in applying Family Code section 4320 factors and that the absence of a specific oral Gavron warning did not mandate termination.

Ruling reviewedStandardThe courtThe model
Reduction of spousal support rather than termination
“we conclude it did not abuse its discretion in reducing rather than terminating Steve's spousal support obligations.”
abuse of discretionnot reachedagree with court
The appellate court applied the abuse of discretion standard, which is the correct standard for reviewing spousal support modifications under California law. The court found substantial evidence in the record supporting the trial court's factual findings regarding the parties' incomes, expenses, and needs. Because the trial court's decision fell within the broad discretion afforded to family courts in balancing the factors of Family Code section 4320, the appellate court's affirmance is legally sound.
Consideration of Gavron warning and self-support efforts
“The fact that a Gavron warning has been given does not excuse the family court from considering the factors set forth in Family Code section 4320 in determining whether to modify or terminate support.”
abuse of discretionnot reachedagree with court
The court correctly identified that while a Gavron warning is a factor, it is not the sole determinant for modification or termination. The appellate court properly noted that the trial court's decision was based on the application of statutory factors rather than solely on the absence of a prior warning. This reasoning aligns with the principle that spousal support modifications require a holistic review of the parties' circumstances under Family Code section 4320.

Authorities

  • relied: In re Marriage of Dietz (2009) 176 Cal.App.4th 387 — A modification of spousal support requires a material change of circumstances and involves considering all factors affecting need and ability to pay, including earning capacity and the supported spouse's ability to engage in gainful employment.
  • relied: In re Marriage of Biderman (1992) 5 Cal.App.4th 409 — The trial court has broad discretion in ruling on a request to modify or terminate a spousal support order.
  • relied: In re Marriage of Reynolds (1998) 63 Cal.App.4th 1373 — An order granting or denying a request to modify spousal support is reviewed for an abuse of discretion, established only when no reasonable person would make the same order under the same circumstances.
  • relied: In re Marriage of Sinks (1988) 204 Cal.App.3d 586 — Abuse of discretion in spousal support matters is established only when no reasonable person would make the same order under the same circumstances.
  • relied: In re Marriage of Norvall (1987) 192 Cal.App.3d 1047 — Appellate courts may not disturb a trial court's factual findings if there is substantial evidence to support them.
  • relied: In re Marriage of Gavron (1988) 203 Cal.App.3d 705 — The supported spouse's failure to make good-faith efforts to become self-sufficient can constitute a change in circumstances warranting modification, provided the spouse was made aware of the obligation to become self-supporting.
  • relied: In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814 — A party's failure to direct the trial court to specific evidence or arguments below may constitute a waiver of the issue for purposes of appeal.

The appellate opinion: sound — The opinion is sound because it correctly applies the abuse of discretion standard to the spousal support modification and properly distinguishes between the presence of a Gavron warning and the broader statutory factors required for modification. The court adequately addresses the appellant's arguments by noting that the trial court's decision was based on a holistic review of the parties' financial circumstances rather than solely on the absence of a prior warning.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:30Z · confidence low

The San Diego family court denied Steve Nussbaum's motion to terminate spousal support after his retirement, instead reducing support from $1,000 to $600 per month, ordering $3,600 in arrearages, and giving Estefania an oral Gavron warning while mistakenly finding no prior Gavron warning appeared in the record. The Court of Appeal affirmed, holding the reduction rather than termination was within the court's discretion and supported by substantial evidence, and that the mistaken Gavron finding was not a basis for reversal because the court decided the motion on the Family Code section 4320 factors.

Ruling reviewedStandardThe courtThe model
Order reducing spousal support from $1,000 to $600 per month rather than terminating it after Steve's retirement
“The evidence in the record supports the court's findings and, given the circumstances, we conclude it did not abuse its discretion in reducing rather than terminating Steve's spousal support obligations.”
mixedcorrectagree with court
The court applied the abuse of discretion standard from Biderman and Reynolds to the modification order and the substantial evidence standard from Norvall to the underlying findings. The trial court found Steve's social security benefits exceeded his expenses by $810 plus about $725 in expected retirement-savings income, while Estefania ran a $600 monthly deficit after an 18-year marriage, a long-term marriage under section 4320. On those findings a reduction to $600 is a reasonable balancing of need and ability to pay, and nothing suggests no judge would make the same order.
Consideration of Steve's income and ability to pay after retirement (Steve's claim the court improperly considered his earning ability)
“Here, the court recognized that Steve's retirement constituted a change of circumstance and that he had a right to stop working.”
abuse of discretioncorrectagree with court
The opinion does not squarely analyze Steve's first contention, but the facts recited show the trial court did not impute pre-retirement earning capacity; it used Steve's actual $2,400 social security benefit and a reasonable expected return on retirement savings, and expressly honored his right to stop working. Section 4320 requires consideration of the supporting party's ability to pay and assets, so this was proper. The appellate court's treatment is thin but the result follows from the findings it recites.
Finding that Estefania had not previously been given a Gavron warning
“Thus, the court's observation that no Gavron warning appeared in the record before it was mistaken.”
substantial evidenceharmless error (fact finding unsupported)agree with court
The 2006 judgment contained the standard preprinted notice about becoming self-supporting, so the trial court's finding was factually wrong. The Court of Appeal correctly held the error immaterial because, under Dietz and section 4320, the existence of a Gavron warning does not relieve the court of weighing all statutory factors, and the transcript showed the court decided on those factors rather than solely on the absence of a warning. The court also noted a possible forfeiture under Falcone & Fyke because Steve never pointed out the preprinted language below, but properly declined to rest on an unbriefed ground.
Alleged failure to consider Estefania's poor asset management and failure to become self-supporting
“The fact that a Gavron warning has been given does not excuse the family court from considering the factors set forth in Family Code section 4320 in determining whether to modify or terminate support.”
abuse of discretioncorrectagree with court
The opinion addresses this contention only indirectly, through the Gavron discussion and the trial court's finding that both parties had done the best they could. The recited facts—job loss from a plant relocation, a year of unemployment, foreclosure, and cashing out retirement funds to buy housing where she found work—support the implicit finding that Estefania acted in good faith, and the supported spouse's efforts are only one of the section 4320 factors. The result is defensible, though the court did not expressly engage with the asset-management argument.

Authorities

  • relied: In re Marriage of Dietz (2009) 176 Cal.App.4th 387 — Modification of spousal support requires a material change of circumstances, assessed under the Family Code section 4320 factors governing need and ability to pay.
  • relied: In re Marriage of Biderman (1992) 5 Cal.App.4th 409 — The trial court has broad discretion in ruling on a request to modify or terminate spousal support.
  • relied: In re Marriage of Reynolds (1998) 63 Cal.App.4th 1373 — A spousal support modification order is reviewed for abuse of discretion, found only where no judge would reasonably make the same order under the same circumstances.
  • relied: In re Marriage of Sinks (1988) 204 Cal.App.3d 586 — Source of the abuse of discretion formulation applied to spousal support orders.
  • relied: In re Marriage of Norvall (1987) 192 Cal.App.3d 1047 — A trial court's factual findings on spousal support may not be disturbed if supported by substantial evidence.
  • relied: In re Marriage of Gavron (1988) 203 Cal.App.3d 705 — A supported spouse's failure to make good-faith efforts to become self-supporting can be a change of circumstances warranting modification only if the spouse was made aware of the obligation to become self-supporting.
  • relied: In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814 — Failure to raise an issue in the trial court may forfeit it on appeal.

The appellate opinion: sound with gaps — The court correctly identified the abuse of discretion and substantial evidence standards, applied Dietz and section 4320 to the findings on need and ability to pay, and sensibly treated the mistaken Gavron finding as immaterial because the trial court decided the motion on the statutory factors. It did not, however, squarely answer Steve's argument about consideration of his earning ability or his argument about Estefania's asset management, resolving them only by implication from the recited findings.

How this analysis was made · dispute it

Opinion

Filed 9/30/15 In re Marriage of Nussbaum CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re the Marriage of ESTEFANIA and STEVE NUSSBAUM. D067550 ESTEFANIA NUSSBAUM, Respondent, (Super. Ct. No. D486177)

v.

STEVE NUSSBAUM,

Appellant.

APPEAL from an order of the Superior Court of San Diego County, Cindy D.

Davis, Judge. Affirmed.

Patrick J. McCrary for Appellant.

Estefania Nussbaum, in pro. per., for Respondent. Steve Nussbaum appeals from an order of the superior court reducing, but not terminating, his spousal support obligations to his former wife, Estefania Nussbaum.1 He contends the court erred in (1) considering his earning ability and (2) not considering Estefania's history of poor asset management and failure to attempt to become self- supporting.2 We find Steve's arguments do not support a reversal of the order and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Steve and Estefania married in July 1986 and separated 18 years later in 2004.

Estefania filed a petition to dissolve the marriage in September 2004 and in 2006 the parties entered into a marital settlement agreement that divided their property; pursuant to the agreement's terms, Steve was awarded the couple's home and he paid Estefania $149,000 in after-tax dollars to equalize the division of property.3 The issue of spousal support was tried separately to the court. At the time, Steve's monthly income was $7,542 and Estefania's was $3,500. Finding that Estefania's income was insufficient to meet the standard of living enjoyed during the marriage but recognizing that Steve had certain health issues, the court awarded Estefania spousal 1 We refer to the parties by their first names as is the custom in family law matters. (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 475, fn. 1.)

2 Steve makes a related argument that the court erred in finding that Estefania had not previously been given a warning in accordance with In re Marriage of Gavron (1988) 203 Cal.App.3d 705 (Gavron), which recognized that "[i]nherent in the concept that the supported spouse's failure to at least make good-faith efforts to become self-sufficient can constitute a change in circumstances which could warrant a modification in spousal support is the premise that the supported spouse be made aware of the obligation to become self-supporting. (Id. at p. 712.)

3 Estefania used the equalization payment to purchase a condominium in San Diego. 2 support of $1,000 a month. The court also acknowledged Steve's stated desire to retire when he reached age 62 (in 2011) and indicated that the issue of spousal support could be revisited at that time.4 The court entered a judgment that incorporated its findings, the spousal support award and a preprinted warning that the court could consider a party's failure to make reasonable efforts to become self-supporting as a basis for later modifying or terminating spousal support.

In June 2012, Estefania (who had a 10th grade education) lost her job as an electronic assembler when her employer moved its local operations to Puerto Rico. She was unable to find another job for more than a year and, based on her lack of income, she lost her condominium to foreclosure. She cashed out her portion of the community retirement benefits (and paid the related taxes and penalties) so that she could buy a condominium in Las Vegas, Nevada, where she ultimately found a job working 20 to 30 hours a week as a caregiver for $9.50 an hour.

After retiring at the end of 2013, Steve stopped paying spousal support and filed a motion to terminate his obligation to pay support. Because she had very limited assets, almost none of which were liquid, Estefania was forced to take out a loan and borrow money from family and friends to meet her monthly financial needs. In May 2014,5 Steve started receiving $2,400 per month in social security benefits. Estefania filed an 4 In 2007, Steve apparently brought a motion to modify spousal support, which the superior court denied after concluding that there was no change in circumstances sufficient to warrant modification.

5 All further date references are in 2014 except as otherwise noted. 3 opposition to Steve's motion to terminate support and submitted a declaration setting forth her financial situation.

Based on the evidence, the court found that Steve's social security benefits exceeded his monthly expenses ($1,590) by $810 and that he could reasonably expect to receive an additional $725 per month in income from his retirement savings. It further found that Estefania had monthly income of $1,140 and expenses of $1,730 (a substantial portion of which was debt service), resulting in a net negative monthly income of $600.

It found that Steve had the ability to continue paying support and that Estefania was unable to meet her monthly financial needs and declined to terminate spousal support, but reduced it to $600 per month effective February 1 and ordered Steve to pay Estefania $3,600 in support arrearages on August 1; it also gave Estefania an oral Gavron warning.

Steve appeals.

DISCUSSION

A modification of spousal support requires a material change of circumstances since the last order. (In re Marriage of Dietz (2009) 176 Cal.App.4th 387, 396 (Dietz).)

A change of circumstances means a reduction or increase in the supporting spouse's ability to pay and/or an increase or decrease in the supported spouse's needs and includes all factors affecting need and ability to pay, including (a) the extent to which each party's earning capacity is sufficient to maintain the marital standard of living; (b) the supporting party's ability to pay spousal support; (c) the parties' respective needs based on the marital standard of living, obligations and assets, including their separate property; (d)

the parties' ages and health; (e) the duration of the marriage; (f) the supported spouse's 4 ability to engage in gainful employment; and (g) the balance of the hardships to the parties. (Id. at pp. 396-397, citing Fam. Code, § 4320, subds. (a), (c)-(f), (h), (k).)

The trial court has broad discretion in ruling on a request to modify or terminate a spousal support order. (In re Marriage of Biderman (1992) 5 Cal.App.4th 409, 412.) We review an order granting or denying a request to modify spousal support for an abuse of discretion, which is established only when " 'it can fairly be said that no judge would reasonably make the same order under the same circumstances.' " (In re Marriage of Reynolds (1998) 63 Cal.App.4th 1373, 1377, quoting In re Marriage of Sinks (1988) 204 Cal.App.3d 586, 591.) Moreover, we may not disturb a trial court's factual findings if there is substantial evidence to support them. (In re Marriage of Norvall (1987) 192 Cal.App.3d 1047, 1060.)

Here, the court recognized that Steve's retirement constituted a change of circumstance and that he had a right to stop working. It recounted the parties' standard of living during the marriage and characterized it as middle class, one that "wasn't extravagant, but [that] was solid." It noted that the 18-year marriage was considered as long term and that Steve had only paid support for eight years. The court discussed the parties' respective monthly incomes and expenses and found that, although both parties had "[done] the best they [could]," Estefania was unable to meet her monthly needs and Steve had the ability to continue to pay support at a reduced level. The evidence in the record supports the court's findings and, given the circumstances, we conclude it did not abuse its discretion in reducing rather than terminating Steve's spousal support obligations.

5 Steve also argues that the family court erred in finding that Estefania had not been given a Gavron warning. Unquestionably, the judgment of dissolution included the following preprinted language:

"NOTICE: It is the goal of this state that each party will make reasonable good faith efforts to become self-supporting as provided for in Family Code section 4320. The failure to make reasonable good faith efforts may be one of the factors considered by the court as a basis for modifying or terminating spousal or partner support."

Thus, the court's observation that no Gavron warning appeared in the record before it was mistaken.6 However, Steve's reliance on this mistake as a basis for reversal is misplaced.

The fact that a Gavron warning has been given does not excuse the family court from considering the factors set forth in Family Code section 4320 in determining whether to modify or terminate support. (E.g., Dietz, supra, 176 Cal.App.4th at p. 396.) Further, the transcript of the hearing here shows that the court declined to terminate support based on its application of those factors, rather than solely based on the absence of a prior Gavron warning.

The family court did not abuse its discretion in reducing rather than terminating Steve's obligation to pay spousal support to Estefania.

6 Notably, Steve did not bring this mistake to the court's attention below. In fact, instead of pointing out the preprinted language in the judgment he relies on now, he argued that the court's 2006 acknowledgement that spousal support could be revisited at the time of his retirement was tantamount to a Gavron warning. Steve's failure to direct the court to the judgment could be deemed to constitute a waiver of the issue for purposes of appeal. (See In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 826.) However, since the issue has not been briefed by the parties, we decline to rely on it as a basis for affirming the order. 6 DISPOSITION The order is affirmed. Estefania is awarded her costs on appeal.

NARES, J.

WE CONCUR:

MCCONNELL, P. J.

HUFFMAN, J.

Cites, in this corpus