Filed 3/27/13 Marriage of Vigil CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



In re the Marriage of LEILANI C. and
DALE W. VIGIL.
                                                                 D059281
LEILANI C. VIGIL,

         Respondent,                                             (Super. Ct. No. D493339)

         v.

DALE W. VIGIL,

         Appellant.


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

Huguenor, Judge. Reversed in part, affirmed in part and remanded for further

proceedings.



         Dale W. Vigil appeals from an order denying his request for a downward

modification of spousal support to his former spouse, Leilani C. Vigil, and requiring him

to contribute $2,500 toward her attorney fees pursuant to Family Code section 2030.

(Undesignated statutory references are to the Family Code.) Dale contends (1) the trial
court abused its discretion by considering his income at the date of separation, rather than

the income stated in the parties' marital settlement agreement (MSA), to determine if

there was a material change in circumstances, (2) the trial court erred in considering the

marital standard of living, and (3) the trial court abused its discretion in ordering him to

contribute to Leilani's attorney fees. We conclude the basis upon which the trial court

undertook consideration of Dale's request to modify spousal support was flawed.

Accordingly, we reverse that portion of the trial court's order and remand for further

proceedings.

                   FACTUAL AND PROCEDURAL BACKGROUND

       Dale and Leilani separated in July 2005 after approximately 38 years of marriage.

In 2007, they entered into a marital settlement agreement (MSA), which the trial court

incorporated into its judgment of dissolution. The terms of the MSA required Dale to pay

$6,500 per month in spousal support. The MSA further stated, "The . . . spousal support

provisions [were] based upon the following facts and circumstances, which existed when

[the MSA] was negotiated: [Dale] is age 62 and [Leilani] age 61. [¶] [Dale] is currently

employed with the Hayward Unified School District and earns $19,145.50 gross monthly

income. . . . The level of spousal support does not allow [Leilani] to meet the marital

standard of living."

       In August 2010, Dale sought to modify his spousal support obligation. He

claimed there was a change in circumstances because he was no longer employed with

the Hayward Unified School District and was not making the $19,145.50 per month

income recited in the MSA. Instead, as of July 2010, he was earning $13,382 per month

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as a superintendent with the Los Angeles Unified School District. Leilani opposed Dale's

request to modify spousal support, claiming a reduction was not warranted because Dale's

income had actually increased from the time of their separation. Specifically, she

asserted that Dale earned $12,833.33 per month when they separated in 2005, which was

less than his present income.

       The trial court declined to modify spousal support, finding there had been no

showing of a substantial change in circumstances because Dale's income had increased

from the date of separation. The court explained "that the income of [Dale] as of the date

of separation, and not the incomes of the parties recited in the Judgment filed [on] June 5,

2007, [was] the basis to decide if a substantial change of circumstances ha[d] occurred

since entry of the Judgment." "The [c]ourt also note[d] the recital in the Judgment that

the level of spousal support therein d[id] not allow [Leilani] to meet the marital standard

of living." Lastly, the court found "[Dale was] doing much better than [Leilani]" and

based thereon ordered him to contribute $2,500 toward her attorney fees.

                                       DISCUSSION

                             I. Modification of Spousal Support

A. General Legal Principles

       " 'Modification of spousal support, even if the prior amount is established by

agreement, requires a material change of circumstances since the last order. [Citations.]

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. [Citations.] It

includes all factors affecting need and the ability to pay.' [Citation.] 'A trial court

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considering whether to modify a spousal support order considers the same criteria set

forth in . . . section 4320 as it considered in making the initial order.' " (In re Marriage of

Dietz (2009) 176 Cal.App.4th 387, 396 (Dietz).) The section 4320 criteria include the

extent to which each party's earning capacity is sufficient to maintain the marital standard

of living; contributions to the supporting spouse's education, training, or career; the

supporting party's ability to pay spousal support; the parties' respective needs based on

the marital standard of living, obligations and assets including their separate property;

their ages and health; the tax consequences to each party; the duration of the marriage;

the supported spouse's ability to engage in gainful employment; the "balance of the

hardships" to the parties; and "[a]ny other factors the court determines are just and

equitable." (§ 4320, subds. (a)–(k), (n).)

       " 'The propriety of an order modifying spousal support "rests within the trial court's

sound discretion. So long as the court exercised its discretion along legal lines, its

decision will not be reversed on appeal if there is substantial evidence to support it.

[Citations.]" Reversal requires a clear showing of abuse of discretion.' " (In re Marriage

of Biderman (1992) 5 Cal.App.4th 409, 412.)

B. Change of Circumstances

       Dale contends the trial court erred by basing its finding that there was not a

material change in circumstances on his income at the time the parties separated in 2005

rather than on his income stated in the 2007 MSA. We agree.

       The moving party must show a "material change since the entry of the previous

order." (In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 47, italics added

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(Schmir).) When the court includes the parties' stipulation in its own decree, it "presumes

that the parties arrived at a fair support award, after arm's-length negotiations, that took

into consideration all of the circumstances as they then existed." (In re Marriage of

Hentz (1976) 57 Cal.App.3d 899, 901.) Accordingly, "[t]he support order sought to be

modified is conclusive as to circumstances existing when entered." (Hogoboom & King,

Cal. Practice Guide: Family Law (The Rutter Group 2012) ¶ 17:151, p. 17–37, citing In

re Marriage of Hoffmeister (1987) 191 Cal.App.3d 351, 364.) " '[I]n determining what

constitutes a change in circumstances the trial court is bound to give effect to the intent

and reasonable expectations of the parties as expressed in the agreement,' and, thus, 'the

trial court's discretion to modify the spousal support order is constrained by the terms of

the marital settlement agreement.' " (Dietz, supra, 176 Cal.App.4th at p. 398.)

       Here, the MSA reflected the parties' reasonable expectations as to spousal support.

Dale and Leilani agreed that Dale would pay $6,500 per month, which was based on his

monthly income of $19,145.50 when they negotiated the MSA. In evaluating whether

there was a material change in circumstances, the trial court ignored the terms of the

MSA and instead focused on Dale's income when the parties separated in 2005. By

doing this, the trial court missed the general rule that there must be a change in

circumstances "since the entry of the previous order." (Schmir, supra, 134 Cal.App.4th at

p. 47.) The trial court was required to " 'give effect to' " the parties' " 'intent and

reasonable expectations . . . as expressed in the agreement.' " (Dietz, supra, 176

Cal.App.4th at p. 398, italics added.)



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       In basing its findings on Dale's earlier 2005 income, the trial court essentially

discarded the parties' bargained-for MSA and inserted terms of its own. However, the

court was not in a position to reevaluate the parties' agreement. "[The court] ha[d] no

right to assume that the parties when they made their stipulation for [spousal support] . . .

did not know precisely what they were doing. [The court] ha[d] no way of knowing what

multitude of factors, or even what single consideration, entered into those stipulations."

(Modglin v. Modglin (1966) 246 Cal.App.2d 411, 415.) As a contract between the

parties, the trial court should have considered the 2007 MSA as a benchmark for

determining whether there was a change in circumstances. The trial court's act of

ignoring the terms of the MSA rendered the MSA meaningless.

       In sum, we conclude the trial court abused its discretion in concluding there was

no material change in circumstances because its reasoning for that conclusion was

flawed. Accordingly, we must reverse that portion of the court's order and remand the

matter for further proceedings. On remand, the trial court should consider this court's

opinion and the section 4320 criteria to determine whether a modification of spousal

support is appropriate.

C. Marital Standard of Living

       Dale next argues the trial court erred in considering the marital standing of living

because that factor is only relevant when the supporting spouse's income had increased

from entry of the previous order. We disagree.

       "Spousal support is governed by statute. [Citations.] In ordering spousal support,

the trial court must consider and weigh all of the circumstances enumerated in the statute,

                                              6
to the extent they are relevant to the case before it. [Citations.] The first of the

enumerated circumstances, the marital standard of living, is relevant as a reference point

against which the other statutory factors are to be weighed. [Citations.]" (In re Marriage

of Cheriton (2001) 92 Cal.App.4th 269, 302–303, second italics added (Cheriton).)

       Here, the trial court's order "note[d] the recital in the Judgment that the level of

spousal support therein d[id] not allow [Leilani] to meet the marital standard of living."

It is unclear from the record what impact that recital had on the court's ruling.

Nevertheless, in considering whether to modify a spousal support order, the trial court

must consider all of the criteria set forth in section 4320, including the marital standard of

living. (Dietz, supra, 176 Cal.App.4th at p. 396; Cheriton, supra, 92 Cal.App.4th at pp.

302–303.) Dale does not cite to any authority that supports his argument that the marital

standard of living is only relevant when the supporting spouse's income increased since

entry of the previous order. Accordingly, we reject his argument.

                                      II. Attorney Fees

       Dale contends the trial court abused its discretion in ordering him to contribute

$2,500 toward Leilani's attorney fees. We disagree.

       Under section 2030, a trial court has broad discretion to award attorney fees based

on a consideration of the parties' respective incomes and needs, and any other factors

affecting the parties' ability to pay. (§ 2030, subd. (a)(2).) "In determining what is just

and reasonable under the relative circumstances, the court shall take into consideration

the need for the award to enable each party, to the extent practical, to have sufficient

financial resources to present the party's case adequately, taking into consideration . . .

                                               7
the circumstances of the respective parties described in Section 4320. The fact that the

party requesting an award of attorney's fees and costs has resources from which the party

could pay the party's own attorney's fees and costs is not itself a bar to an order that the

other party pay part or all of the fees and costs requested. Financial resources are only

one factor for the court to consider in determining how to apportion the overall cost of the

litigation equitably between the parties under their relative circumstances." (§ 2032,

subd. (b).)

        Here, the trial court ordered Dale to contribute $2,500 to Leilani's attorney fees

because "[he was] doing much better than [Leilani]." Dale argues the trial court's

conclusion was not supported by the record because the parties' income and expense

declarations showed a difference of only $1,144 in their gross monthly incomes. To

arrive at that number, Dale included his $6,500 per month spousal support obligation in

Leilani's income. However, according to Leilani's income and expense declaration, she

was not receiving that full amount. Regardless, Dale's monthly income is still higher

than Leilani's. Further, while the parties' respective incomes are a factor, the trial court

must also consider their needs. (§ 2030, subd. (a)(2).) Leilani's monthly expenses are

$6,831, whereas Dale's are $6,257. Under these circumstances, we conclude the trial

court acted within its discretion in ordering Dale to contribute $2,500 to Leilani's attorney

fees.

                                       DISPOSITION

        That portion of the trial court's order denying appellant's request for a downward

modification of spousal support is reversed and the matter is remanded for further

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proceedings consistent with this opinion. The balance of the order is affirmed. The

parties shall bear their own costs on appeal.



                                                                 MCINTYRE, J.

WE CONCUR:

BENKE, Acting P. J.

NARES, J.




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