Filed 8/28/14 Laughman v. Laughman CA2/8

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


EILEEN K. LAUGHMAN,                                                  B251863

                   Plaintiff and Respondent,                         (Los Angeles County
                                                                     Super. Ct. No. BD497590)
         v.

RICHARD KEITH LAUGHMAN,

                   Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County.
Patrick A. Cathcart, Judge. Affirmed.

         Law Office of Anthony D. Zinnanti and Anthony D. Zinnanti for Plaintiff and
Respondent.



         The Reape – Rickett Law Firm and Donald S. Sherwyn for Defendant and
Appellant.


                                       __________________________
       Richard Keith Laughman appeals from the family law court order denying his
motion for a downward modification of his spousal support payments to former wife
Eileen K. Laughman. We reject his contention that his ex-wife was obligated to use
anything other than good faith in attempting to become employed as a psychologist and
affirm because substantial evidence supports a finding that her efforts to obtain
employment have been conducted in good faith.

                       FACTS AND PROCEDURAL HISTORY

       Richard Keith Laughman and Eileen K. Laughman married in 1973, separated
sometime between August and December 2008, and separately filed for divorce in
December 2008.1 A stipulated judgment was entered in November 2011, awarding
Eileen monthly spousal support of $11,500. As part of the spousal support award, the
judgment said that Eileen was “admonished of the policy of the state of California to
become self sufficient and further ordered to use full time efforts in seeking full time
employment. Pursuant to Family Code, section 4320 and In re Marriage of Gavron
(1988) 203 Cal.App.3d 705, [she] has been notified of her obligation to become self-
supporting.”
       Richard and Eileen first lived in Minnesota, where Eileen was a licensed
psychologist and taught children with learning disabilities. She and Keith later moved to
California, which did not have licensing reciprocity with Minnesota. In April 2013 Keith
brought a motion to reduce Eileen’s spousal support payments based on her alleged lack
of diligence in looking for work, particularly her failure to accumulate the 1500 hours of
clinical supervision she needed to become a licensed psychologist in California.
       Keith’s supporting declaration was based on his interpretation of the quarterly
reports filed by John Stevenson, the vocational counselor Eileen was ordered to use to

1      For ease of reference we will refer to these parties by their first names. Richard
and Eileen have been before us once before, in a case that concerned Eileen’s claim to a
share of certain separate property assets belonging to Richard. (Laughman v. Laughman
(Feb. 10, 2014, B245837) [nonpub. opn.].)

                                              2
facilitate her return to the job market. According to Keith, the reports showed that Eileen
was doing little more than applying to two or three jobs each month, which fell well short
of the court-ordered requirement that she use full-time efforts to find work.
       Eileen’s opposition declaration said that she had worked part-time as a teacher in
Minnesota and did not obtain her psychology license until 2004. She and Keith moved to
California in 2005. In order to become a licensed California psychologist, she needed
1500 hours of supervised clinical experience. Her research showed that a typical
internship pays from $10 to $18 per hour but, despite “tireless” search efforts and the
help of her vocational counselor, “none of those jobs can be found.” Eileen claimed that
the poor economy had made her job search even harder.
       According to Eileen, she pays Stevenson for his vocational services. He searches
for jobs and each month they discuss his findings, review the current job market and job
posts, and explore job alternatives. She also conducts online job searches, reads
newspapers and trade magazines, and spends 30 to 90 minutes a day going through e-
mails and checking for job search responses. This includes websites devoted to mental
health professionals, but some of the jobs listed there require a license and she had not
found any internship positions.
       Eileen said she also looks for teaching jobs and applied to be an adjunct
psychology professor at her local community college. Eileen also looked into teaching
jobs in area public schools but was told there were no new jobs due to budget cutbacks.
She had applied to “every job opening for which I am qualified to apply for, but have
received no response that fits the category of psychology I received training in.”
       She has discussed her job search with other therapists and offered to pay them to
provide her with the necessary hours of clinical supervision. Due to ethical constraints,
however, those practitioners declined to do so. She contacted more private practice
psychologists in the past month, but they had lost patients to the poor economy and could
not afford to give her their remaining clients.




                                              3
       In addition she was taking mandatory continuing education courses in order to
maintain her Minnesota license as well as companion dog training workshops in order to
use that form of therapy if and when she obtained her California license.
       Finally, Eileen stated that there were usually no more than two or three job
openings each month for which she qualified, and asked the court to consider both her
age (now 60), and the periods she was unemployed in order to support Keith’s career.
       Stevenson’s declaration said that the number of positions for which Eileen
qualified was “severely limited,” in part due to the economic downturn and in part
because she was not licensed in California. She has applied for those positions but had
not been asked to interview. Eileen had also been unable to find someone to provide the
supervised clinical experience she needed to obtain her California psychology license.
One reason for that is the large number of psychology doctoral graduates competing
against her. Stevenson also believed that despite laws against age discrimination, Eileen
was being overlooked due to her age.
       Stevenson attached copies of his quarterly reports to his declaration, which ran
from September 2011 through May 2013. The reports stated that Eileen applied for many
job openings where either no California license was required or she merely had to be
eligible to obtain licensing in the future, including: several at Pacific Clinics; St. John’s
Child and Family Development Center; Serco; several at UCLA; Spectrum Healthcare
Resources; STG International, Inc.; Children’s Institute; several at USC; Village Family
Services; Fuller Theological Seminary; Azusa Pacific University; Cerritos Community
College; Loyola Marymount University; Cal Lutheran University; College Hospitals;
Cedars Sinai Hospital; Glendale Adventist Medical Center; and the Los Angeles County
Department of Mental Health.
       Keith submitted a reply declaration complaining that Eileen had not provided e-
mails from potential employers, copies of job applications she supposedly submitted, or
anything beyond Stevenson’s reports. As he saw it, Eileen’s declaration showed that she
spent minimal time looking for a limited class of jobs or taking dog-training classes, none
of which amounted to the full time job search efforts required by the 2011 judgment.

                                              4
       Keith also provided a declaration from his vocational counseling expert, Susan
Wise Miller. Attached to her declaration was a copy of her 2010 vocational examination
report on Eileen’s employability. Wise stated that Eileen had the ability and opportunity
to work. She criticized the declaration of Eileen’s vocational counselor (Stevenson)
because he did not: (1) specify where or how many resumes Eileen had submitted or the
titles of the jobs she sought; or (2) address Eileen’s efforts to obtain the clinical
supervision she needed in order to obtain her California license.
       Wise also wondered whether Stevenson had coached Eileen on different strategies
such as joining groups on the LinkedIn website, networking by attending professional
conferences and meetings, or taking classes to update her knowledge and expertise.
Finally, Wise disagreed that Eileen’s age was a barrier to employment because wisdom
and experience were considered important attributes for psychological counselors.
       The trial court denied Richard’s request to decrease Eileen’s spousal support,
finding that Eileen had acted reasonably and in good faith and that her difficulties were
due to her age and the poor job market. The court ordered Eileen to continue using
Stevenson’s vocational counseling services in order to find a job and satisfy her clinical
supervision requirement on a voluntary basis if possible.

                                       DISCUSSION

       1.     Applicable Law and Standard of Review

       Among the factors to be considered by a trial court when determining spousal
support are: (1) the supported spouse’s marketable skills and ability to become gainfully
employed (Fam. Code, § 4320, subd. (a)(1)); and (2) the goal that the supported party
become self-supporting within a reasonable period of time. (Fam. Code, § 4320,
subd. (2)(l).) By setting forth these factors, the Legislature intended that all supported
spouses who were able to do so should seek employment. The Legislature also intended
that the courts would issue orders encouraging supported spouses to take the steps needed



                                               5
to become self-supporting. (In re Marriage of Gavron, supra, 203 Cal.App.3d at
p. 711 (Gavron).)
       A supported spouse’s failure to make good faith efforts to become self-sufficient
can constitute a change of circumstances that warrants either reduction or elimination of
spousal support. Inherent in this concept is advance warning that the supported spouse
would face a loss of spousal support if he or she did not become self-sufficient within a
reasonable period. (Gavron, supra, 203 Cal.App.3d at p. 712.) We review the trial
court’s ruling on a motion to modify spousal support under the abuse of discretion
standard. When exercising its discretion, the trial court must follow established legal
principles and base its findings on substantial evidence. (In re Marriage of West (2007)
152 Cal.App.4th 240, 246.)

       2.         Eileen Was Obligated to Make Good Faith Efforts to Obtain Employment

       The trial court denied Richard’s motion to reduce Eileen’s spousal support
because it believed she acted in good faith in looking for work. Richard contends this
was error because Eileen was obligated to make “full-time efforts” in her employment
search pursuant to the 2011 stipulated judgment, while the evidence showed she did far
less than that.
       According to Richard, Gavron’s good faith standard is too amorphous to be
meaningful, a defect that was remedied by application of the “full-time efforts” provision
in the judgment. Richard contends that the heightened “full time” standard was applied
by the trial court in 2011 because vocational expert Wise’s 2010 report showed that
despite an earlier Gavron warning Eileen had done little to obtain work or the required
1500 hours of clinical supervision she needed, a requirement that could be completed
within one year at 30 hours per week.
       The stipulated judgment must be construed according to the statutory rules
governing the interpretation of contracts. Any ambiguity in the language must be
construed in favor of the right to spousal support. (In re Marriage of Iberti (1997)
55 Cal.App.4th 1434, 1439.) Absent from Richard’s analysis is the sentence that

                                              6
immediately follows the “full-time efforts” requirement: that “[p]ursuant to Family Code
[section] 4320 and [Gavron], . . . [Eileen] has been notified of her obligation to become
self-supporting.” These two provisions must be interpreted together. (Civ. Code, § 1641;
Zalkind v. Ceradyne, Inc. (2011) 194 Cal.App.4th 1010, 1027.) As a result, we believe
the “full time efforts” language is modified by the subsequent reference to Gavron, which
held that a supported spouse risked the loss of spousal support unless he or she made
good faith efforts to obtain employment.
       This makes sense because, despite Richard’s claim to the contrary, we believe that
in this context “full time” is ambiguous. As Richard points out, “full time” is generally
understood to mean 40 hours per week. Does this mean that Richard could have obtained
a spousal support reduction if Eileen had spent fewer than 40 hours each week looking
for work? Would 35 hours a week be enough? Would Eileen have to keep time sheets or
punch a time clock to verify that she was putting in sufficient time each week? Merely
asking these questions shows how unworkable Richard’s construction actually is. While
a job search can be time consuming, it seems unlikely that a fruitful eight hours could be
devoted to that search day in and day out, especially in a slow job market. Accordingly, a
heightened requirement based solely on time spent looking for work seems to serve no
useful purpose.2
       We believe the “full-time efforts” language is best viewed in light of the
expectation that Eileen could complete her clinical supervision requirement within a year
if she worked 30 hours a week or more. However that expectation hinged on her ability
to find a psychologist willing to supervise her at all, much less at that level. When
viewed in that light, and coupled with the judgment’s reference to Gavron, we conclude
that Eileen was required to use good faith in order to find such a position. We next
examine whether the evidence supports the trial court’s finding that she did so.




2      We are not asked to decide, and therefore do not consider, whether a heightened
standard of diligence could ever be imposed.
                                             7
       3.     There Is Substantial Evidence of Eileen’s Good Faith

       Richard’s appellate briefs did not consider the possibility that the trial court
correctly measured Eileen’s conduct against the Gavron good faith standard and he has
failed to analyze the evidence in that light. We therefore deem the issue waived. (Doe v.
Roman Catholic Archbishop of Cashel & Emly (2009) 177 Cal.App.4th 209, 218.) We
alternatively conclude on the merits that the trial court’s good faith finding is supported
by substantial evidence.
       Between the declarations of Eileen and Stevenson it appears that there were a
limited number of psychological counseling-related positions open to someone who was
not licensed in California, in part because of the poor economy. Stevenson’s quarterly
reports identified many to which Eileen submitted resumes. Eileen said she regularly
looks online and in trade publications for appropriate job openings, had applied to
become a community college psychology instructor, and had looked into public school
teaching positions at nearby school districts, all without success.
       As for finding a California-licensed psychologist to supervise her for the required
1500 hours so she could obtain her California license, she has sought out practitioners
and even offered to pay them to take her on, but has found no one willing to do so. She
has been told that this also is due in part to the poor economy. According to Stevenson,
Eileen’s search was complicated by the fact that she was competing against many other
unlicensed psychology doctorates.
       Richard points to instances where Eileen admittedly turned down internship offers
“in recent years,” but neglects to specify that those occurred in 2008, long before the
stipulated judgment and Gavron warnings. They are therefore irrelevant to an analysis of
Eileen’s conduct after the 2011 judgment was entered. Ultimately, despite Richard’s
attempts to discredit or minimize this evidence, we believe the trial court reasonably
found a good faith effort by Eileen to find work or make herself employable.3


3      In conjunction with his appellate reply brief, Richard has asked us to augment the
record with portions of Eileen’s deposition transcript that he contends undercut her
                                              8
                                     DISPOSITION

       The order denying Richard’s motion to modify spousal support is affirmed. Eileen
shall recover her costs on appeal.




                                                 RUBIN, ACTING P. J.
WE CONCUR:



              FLIER, J.



              GRIMES, J.




claims that she devoted herself to her role as homemaker before the divorce and was
making reasonable efforts to become employed. We deny that request because the
deposition materials were not part of Richard’s modification motion and therefore were
not before the trial court. (People v. Catlin (2001) 26 Cal.4th 81, 170-171, overruled on
another ground in People v. Nelson (2008) 43 Cal.4th 1242, 1253-1256.) We note that
some of the statements Richard wants us to consider were included in Wise’s 2010
report, which was before the trial court and are part of the record on appeal, and we have
considered those as part of our analysis.
                                            9
