Filed 7/29/14 Marriage of Baysinger CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



In re the Marriage of BILLY and CHERYL
BAYSINGER.

BILLY BAYSINGER,
                                                                         E058483
         Respondent,
                                                                         (Super.Ct.No. SBFSS46424)
v.
                                                                         OPINION
CHERYL BAYSINGER,

         Appellant.



         APPEAL from the Superior Court of San Bernardino County. Raymond L. Haight

III and James J. Hosking, Judges. Affirmed.

         Edmund L. Montgomery for Appellant.

         No appearance for Respondent.




                                                             1
       Appellant Cheryl Baysinger appeals after an order denying her request to modify

spousal support. Cheryl1 contends on appeal as follows: (1) The trial court erred by

finding that it lacked jurisdiction to modify the spousal support order, which was filed

prior to the termination date of the previous spousal support order, but was not heard until

after the prior order was terminated; and (2) the trial court should have conducted a

hearing based on all of the factors in Family Code section 43202 before denying the

modification of spousal support.

       We affirm the order.

                                              I

                   FACTUAL AND PROCEDURAL BACKGROUND

       Respondent Billy Baysinger has not filed a respondent’s brief. California Rules of

Court, rule 8.220(a)(2), provides that when a party fails to file a responsive brief “the

court may decide the appeal on the record, the opening brief, and any oral argument by

the appellant.” We must “‘examine the record on the basis of appellant’s brief and to

reverse only if prejudicial error is found. [Citations.]’ [Citations.]” (Lee v. Wells Fargo

Bank (2001) 88 Cal.App.4th 1187, 1192, fn. 7.)

       On August 11, 1999, Billy filed for divorce. According to the petition, he and

Cheryl were married on February 14, 1982, and had separated on July 15, 1999. Cheryl

and Billy apparently reconciled.

       1      We refer to the Baysingers by their first names not out of disrespect but for
ease of reference.
       2      All further statutory references are to the Family Code unless otherwise
indicated.


                                              2
       On May 10, 2002, Cheryl filed for legal separation. She claimed they had

separated on May 7, 2002. Billy contended the date of separation was July 2003. On

December 15, 2003, the trial court ruled on the legal separation that the date of separation

of the marriage was December 31, 2001. The parties were to meet and confer to prepare

the judgment. On June 21, 2004, Cheryl filed a motion for reconsideration. It was

deemed untimely. Apparently, the parties were unable to execute a judgment on the legal

separation.

       On August 25, 2004, Billy filed an amended petition for dissolution of marriage.

The decree of dissolution of marriage was granted August 25, 2004 on the grounds of

irreconcilable differences. The trial court ordered that marital status be terminated on

February 26, 2005, or upon the signing of the judgment, whichever later occurs.

       On July 28, 2005, the trial court filed the judgment. The trial court retained

jurisdiction over the issue of spousal support for the benefit of both parties but none was

awarded at that time.

       On January 22, 2010, Cheryl filed an order to show cause for spousal support in

the amount of $600 per month. Cheryl filed an income and expense declaration. She

alleged that the marriage was of long duration pursuant to sections 4320 and 4336.3 She

declared that her income had changed and she needed spousal support.


       3       Section 4336, subdivision (a) provides, “Except on written agreement of the
parties to the contrary or a court order terminating spousal support, the court retains
jurisdiction indefinitely in a proceeding for dissolution of marriage . . . of the parties
where the marriage is of long duration.” Subdivision (b) of section 4336 provides a
presumption of 10 years is a marriage of long duration.


                                             3
       On March 29, 2010, Billy filed a response contesting the request for spousal

support. Billy alleged he was 72 years old. He insisted that Cheryl had to be self

supporting within five years of the marital dissolution. He also filed an income and

expense declaration.

       The trial court heard the matter on June 3, 2010. Cheryl stated that she no longer

had any income to support herself. The trial court noted Cheryl would receive social

security starting January 15, 2013, and that “[c]learly, I wouldn’t order any spousal

support after you’re going to get social security.” The trial court ruled, “In considering

4320 factors, I think for the next two years there’s going to be a sufficient disparity of

income but some spousal support is warranted. I do find as of January 1st, 2013, incomes

will be nearly equal because [Cheryl] will be getting social security over $1200. So what

I’m going to do is order spousal support in the amount of $200 to commence July 1st of

this year. It will terminate on January 1st, 2013, and the Court will terminate jurisdiction

over spousal support.” The trial court denied support retroactive from January 2010.

Cheryl never objected to the decision.

       On December 31, 2012, Cheryl filed an order to show cause for modification of

spousal support. Cheryl requested spousal support in the amount of $600 per month. She

also requested retroactive spousal support in the amount of $1,000 for the time period of

January 22, 2010 (the date she filed the original order to show cause for spousal support)

to June 3, 2010 (the date the matter was heard). Cheryl complained that the trial court

did not consider that Cheryl only received two and one-half years of spousal support for a

twenty year marriage. She filed an income and expense declaration.


                                              4
       The matter was heard on February 13, 2013. The trial court stated that it had

reviewed the pleadings and the file.4 It noted that the trial court previously had provided

that spousal support would terminate on January 1, 2013 and that jurisdiction would

terminate on that date. The trial court noted that the request for modification was filed on

December 31, 2012. The trial court stated, “It was filed before jurisdiction terminated,

but the Court’s jurisdiction has now terminated and I do not believe that the Court has

jurisdiction to terminate - - or to modify this judgment any longer. My tentative is to

deny the request for order.”

       Cheryl stated, “. . . based on the long-term marriage, I am requesting spousal

support based on my constitutional Amendment 14 due process, equal protection clause.”

Cheryl also argued that she did not receive the appropriate compensation in the divorce.

The trial court stated that was an issue it could no longer decide. The trial court again

stated that jurisdiction as to spousal support had terminated and it was barred from

considering the request to modify. Moreover, the trial court stated that Cheryl had not

presented any change in circumstances since the last order. The trial court found,

“[E]ven if I did consider a request to modify, there’s been no additional change in

circumstances from the time of the first trial warranting any modification of the Court’s

orders. [¶] The request for order filed December 31, 2012, is denied.”

       Cheryl filed a notice of appeal on April 3, 2013 pursuant to Code of Civil

Procedure section 904.1, subdivisions (a)(3)-(13).

       4       The trial judge who heard the modification of spousal support was different
from the trial judge who originally granted spousal support.


                                             5
                                              II

                                        ANALYSIS

       Cheryl’s claims essentially are that the trial court erred by finding it lacked

jurisdiction to modify and extend spousal support, and that it did not consider the factors

in section 4320 in denying the modification. We need not engage in a lengthy discussion

of whether the trial court had jurisdiction to modify and extend the spousal support as it

concluded, in the alternative, that no change of circumstances warranted extension of the

spousal support. Such determination was not an abuse of discretion.5

       ‘“Appellate review of orders modifying spousal support is governed by an abuse

of discretion standard.’ [Citations.]” (In re Marriage of Dietz (2009) 176 Cal.App.4th

387, 398.) When a party seeks to modify spousal support, the party must proffer

admissible evidence of a material change of factual circumstances after the last order.

(Ibid.; In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 575.) “While the trial

court has wide latitude in exercising its discretion to modify an award of spousal support,

there must be demonstrated a material change of circumstances subsequent to the prior

order. [Citation.] In the absence of such a substantial change of circumstances, the court

has no authority to modify a spousal support award. [Citation.] The facts and

circumstances of each case determine whether a modification is warranted, and the

exercise of the trial court’s discretion in ordering modification will not be disturbed on


       5      We do note that based on the cases cited in appellant’s opening brief, it
does appear the trial court had jurisdiction to hear the modification as the original order
did not foreclose modification.


                                              6
appeal unless, as a matter of law, an abuse of discretion is shown. [Citation.]” (In re

Marriage of Farrell (1985) 171 Cal.App.3d 695, 700.)

        “‘Whether a modification of a spousal support order is warranted depends upon

the facts and circumstances of each case, and its propriety rests in the sound discretion of

the trial court the exercise of which this court will not disturb unless as a matter of law an

abuse of discretion is shown.’ [Citation.] An abuse of discretion occurs ‘where,

considering all the relevant circumstances, the court has exceeded the bounds of reason or

it can fairly be said that no judge would reasonably make the same order under the same

circumstances.’ [Citation.]” (In re Marriage of Olson (1993) 14 Cal.App.4th 1, 7.) “‘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.’” (In re Marriage of

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

       Here, the record supports the trial court’s conclusion that Cheryl provided no

material change of circumstances warranting continued spousal support. She submitted

almost an identical income and expense declaration as the one submitted at the time she

initially requested spousal support. The only difference was apparently she purchased a

car and was making payments on the car. She admitted in her order to show cause that

there had been no change in her disability circumstances since the trial on June 3, 2010.

Her income had not changed. She was unable to work at both times. Moreover, Cheryl

has made no argument on appeal that there was a material change in her circumstances.

Rather, she focuses on the trial court’s additional ruling that it had no jurisdiction to hear

the matter. However, as noted, the trial court alternatively found that even if it decided


                                               7
the issue, there were not changed circumstances warranting continuation of spousal

support. The trial court did not abuse its vast discretion in denying continued spousal

support to Cheryl.

       Cheryl claims that the trial court did not consider the factors in section 4320 in

denying the modification because it found it lacked jurisdiction to modify the spousal

support. Initially, this ignores the fact that the trial court also found that if it had

jurisdiction, it would not have granted additional spousal support. Moreover, unless the

record shows otherwise, we presume the trial court considered the section 4320 factors in

denying continued support. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [“‘A

judgment or order of the lower court is presumed correct. All intendments and

presumptions are indulged to support [the judgment] on matters as to which the record is

silent, and error must be affirmatively shown.’”].)

       “A trial court considering whether to modify a spousal support order considers the

same criteria set forth in Family Code section 4320 as it considered in making the initial

order.” (In re Marriage of West (2007) 152 Cal.App.4th 240, 247.) Section 4320

includes several factors to be considered in determining spousal support including the

earning capacity of each party, the marketable skills of the supported party, ability of the

supporting party to pay spousal support, needs of each party based on the standard of

living established during the marriage, the obligations and assets of each party, the

duration of the marriage and several other factors.

       Here, at the initial hearing to award spousal support, the trial court made its

findings under section 4320. It also stated that it would terminate jurisdiction for


                                                8
awarding spousal support in January 2013 because at that time Cheryl would begin

receiving social security. The trial court noted at the modification hearing that no

material change of circumstances had been shown since the prior hearing. It considered

the section 4320 factors at the prior hearing. Nothing in the record establishes that the

trial court ignored the factors in section 4320 in denying continued spousal support.

Cheryl has failed to show that the trial court erred in finding no material change of

circumstances and denying continued support.

                                             III

                                      DISPOSITION

       The order appealed from is affirmed. Cheryl is to bear her own costs on appeal.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                RICHLI
                                                                                            J.

We concur:


McKINSTER
                Acting P. J.


CODRINGTON
                          J.




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