Filed 3/3/15 Marriage of Pinon 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 PHILLIP and
GLORIA PINON.

PHILLIP LOUIS PINON,
                                                                         E060386
         Appellant,
                                                                         (Super.Ct.No. FAM157362)
v.
                                                                         OPINION
GLORIA J. PINON,

         Respondent.



         APPEAL from the Superior Court of Riverside County. H. Ronald Domnitz,

Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant

to art. VI, § 6 of the Cal. Const.) Affirmed.

         Edmund L. Montgomery for Appellant.

         Chandler Law Firm and Robert C. Chandler for Respondent.




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                                               I

                                      INTRODUCTION

       Phillip Louis Pinon,1 petitioner and appellant, appeals from an order after

judgment. (Code Civ. Proc., § 904.1, subd. (a)(2).) The court ordered Phillip to pay

$2,000 a month in spousal support to his former wife, Gloria.

       Phillip frames the issues on appeal as follows: whether the parties mutually

agreed in writing, as provided by Family Code section 4337,2 to waive the court’s

jurisdiction to award spousal support upon the remarriage of either party, or, in the

alternative, whether the court failed to conduct a hearing or to make the findings on the

record required for an order of spousal support under section 4320.

       We hold the court retained jurisdiction to award spousal support in a long

marriage (§ 4336), and the trial court adequately addressed the relevant circumstances at

the hearing (§ 4320). We affirm.

                                              II

                        FACTUAL AND PROCEDURAL HISTORY

       The parties represented themselves throughout most of the proceedings until

December 2013.



       1   We use the parties’ first names for ease of reference.

       2   All further statutory references are to the Family Code.



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A. The Dissolution Proceedings from 1995 to 1998

       In 1995, Phillip filed a petition for dissolution of a marriage of 26 years, from

March 1969 to February 1995. In his petition for dissolution, Phillip asked the court to

terminate its jurisdiction to grant spousal support. He did not ask for spousal support. In

her response, Gloria asked for spousal support.

       On March 19, 1996, the parties appeared in propria persona at a trial status

conference. The minute order states: “Parties will collaborate on the preparation of a

final order and judgment in accordance with the stipulation. [¶] . . . [¶] Final Disclosures

are knowingly and intelligently WAIVED.”

       The stipulation and corresponding judgment were prepared by Phillip and were

executed by the parties acting in propria persona. No spousal support was awarded at

that time. However, the stipulation and judgment provided, “The court reserves

jurisdiction over spousal support for the benefit of both parties until the remarriage or

death of either party.” It was further stipulated Gloria was “entitled to one-half (1/2)

interest in Petitioner’s Retirement Benefits with the County of Orange.” Judgment was

entered on October 2, 1996. Phillip remarried in April 1997.

       In 1997, the parties executed a stipulated domestic relations order, prepared by

Gloria, dividing their interest in Phillip’s retirement benefits. In 1998, the parties

executed an agreement, prepared by Gloria, in which Gloria agreed to waive her interest

in the retirement benefits for payment of $14,400.




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B. The Modification of Child Support in 2013

       On September 23, 2013, Gloria filed a request to modify spousal support. In

support of her request, Gloria explained the parties had earned equal incomes of about

$3,500 monthly in 1996 but a change in circumstances had occurred because she was no

longer able to work. Gloria was 65 years old, diabetic, and the caretaker for her parents,

ages 87 and 90. Gloria was living on social security payments of $1,350 per month and

her elderly parents’ monthly income was $1,200. Gloria’s expenses were $1,536

monthly.

       Phillip responded that, after he had retired seven years earlier, he received a

monthly income of more than $9,000, including retirement income of $4,693; $1,340

monthly for veteran’s disability; and an additional monthly payment of $3,131 as

compensation for exposure to Agent Orange. He argued that Gloria was not entitled to

income received from his retirement, and the Agent Orange compensation was for

personal injury to him and his exposure predated his marriage to Gloria.

       On November 12, 2013, the trial court ordered Phillip to pay spousal support in

the amount of $2,000 a month to Gloria. The court based its award on the following

findings: “. . . based upon your middle class standard of living, based upon an income

together of about $7,000, based upon the fact that you are both retired, based upon the

fact that she needs support, and you [Phillip] certainly are capable of paying support. . . .

[¶] There’s no hardship on you. Both of you were of retirement age.” The order was




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entered on December 4, 2013. On December 9, 2013, the trial court denied Phillip’s ex

parte application to vacate the order for spousal support.

                                             III

                                     JURISDICTION

       As a preliminary issue, we first determine whether the trial court had jurisdiction

to make an award of spousal support. Phillip argues the parties agreed in writing to

waive jurisdiction if either of them remarried or died. Specifically, the parties agreed to

the following order: “The court reserves jurisdiction over spousal support for the benefit

of: both parties until the remarriage or death of either party.” We conclude there is a

patent ambiguity in this language as to whether it means a supporting party can avoid

jurisdiction by remarrying as Phillip has done.

       Phillip relies on section 4337, which provides: “Except as otherwise agreed by the

parties in writing, the obligation of a party under an order for the support of the other

party terminates upon the death of either party or the remarriage of the other party.

[Emphasis added.]” Section 4337 says nothing expressly about the court’s jurisdiction to

award spousal support. Furthermore, section 4337 applies in circumstances where one

party is subject to an existing order of support and the other supported party remarries.

Section 4337 does not apply in this situation where Phillip was not under an order of

support to Gloria, and it was Phillip, not Gloria, who remarried.

       Instead, the correct statute to apply is section 4336, which involves the retention of

jurisdiction in a long marriage:

                                              5
       “(a) 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 or for legal separation of the parties where the marriage is of long

duration.

       “(b) For the purpose of retaining jurisdiction, there is a presumption affecting the

burden of producing evidence that a marriage of 10 years or more, from the date of

marriage to the date of separation, is a marriage of long duration.”

       Here the issue is whether the parties’ written agreement can be interpreted to

terminate jurisdiction to award spousal support to Gloria because Phillip remarried. We

find the language of their agreement to be ambiguous and subject to interpretation, thus

preserving the trial court’s jurisdiction to award spousal support.

       Where spousal support was an issue in the dissolution proceeding because a party

requested it in her petition but no spousal support was originally awarded, the issue of

jurisdiction to make a postjudgment spousal support award is decided according to the

terms of the judgment. (In re Marriage of Ostrander (1997) 53 Cal.App.4th 63, 65-66.)

“If ambiguous, the language in a marital settlement agreement should be construed in

favor of support. (In re Marriage of Ousterman (1996) 46 Cal.App.4th 1090, 1096.)” (In

re Marriage of Schu (2014) 231 Cal.App.4th 394, 400; In re Marriage of Vomacka

(1984) 36 Cal.3d 459, 469.) “A term of the agreement is ambiguous if it is susceptible of

more than one reasonable interpretation. [Citations.] Provided it supports a meaning to

which the language is reasonably susceptible, extrinsic evidence is admissible to prove

                                              6
the parties’ intent as to ambiguous terms in a marital settlement agreement.” (In re

Marriage of Iberti (1997) 55 Cal.App.4th 1434, 1439, citing In re Marriage of Paul

(1985) 173 Cal.App.3d 913, 917-918.)

       A court’s order retaining jurisdiction should be stated as explicitly as possible:

“[W]e encourage trial courts to strive for this clarity.” (In re Marriage of Vomacka,

supra, 36 Cal.3d at p. 467.) Unfortunately, clarity in this instance is lacking—perhaps

because the parties were not represented by lawyers and Phillip prepared the stipulation

and judgment, making it ambiguous whether the parties intended to terminate the

obligation of a supporting party upon his remarriage, rather than the remarriage of the

supported party. (See Steele v. Langmuir (1976) 65 Cal.App.3d 459, 463.) On its face,

the language could be read to divest the court of jurisdiction to award spousal support to

Gloria if either Phillip or Gloria remarried. That is the interpretation advanced by Phillip,

who remarried in 1997, almost immediately after the divorce from Gloria was final.

However, we reject this interpretation for two reasons.

       First, Phillip never asked for spousal support in his petition. Instead, he asked for

the court’s jurisdiction over spousal support to terminate, and Gloria asked for support to

be awarded. Based on the record, the judgment is certainly subject to the interpretation

that only spousal support for Gloria was at issue, and the parties meant to agree that, if

she remarried, jurisdiction to award support would end. We reach this conclusion in spite

of In re Marriage of Liss (1992) 10 Cal.App.4th 1426, 1429-1430, in which the appellate

court held the trial court did not abuse its discretion by retaining jurisdiction to award

                                              7
spousal support to a husband despite his lack of request. Liss supports the policy of

retaining jurisdiction over spousal support in a long marriage. In this case, we consider

Phillip’s initial request to terminate jurisdiction as an indication that the ultimate

judgment concerned whether jurisdiction regarding payment of spousal support to Gloria

would end if she remarried.

       Second, an award of spousal support necessarily contemplates there be a

supporting party and a supported party. Section 4336, for example, refers to the

obligation of a supporting party ending upon “the death of either party” and “the

remarriage of the other party.” In other words, Phillips’s obligations to Gloria under a

spousal support award would end upon the death of either of them or the remarriage of

Gloria. But Phillip cites no authority allowing him, as the supporting party, to

circumvent his obligation to provide support to Gloria by remarrying. If that were

allowed, it would render a spousal support award illusory because it could be easily

avoided by the expedient of remarriage as Phillip has attempted. Therefore, we conclude

the evidence in the record supports that the trial court retained jurisdiction in this case to

make a spousal support award in favor of Gloria.

                                              IV

                                     SUPPORT ORDER

       Having determined there was jurisdiction, we next review the trial court’s order

for spousal support for an abuse of discretion. (In re Marriage of Kochan (2011) 193

Cal.App.4th 420, 428; In re Marriage of Stephenson (1995) 39 Cal.App.4th 71, 76-77.)

                                               8
Phillips argues the trial court must recognize and apply each applicable statutory factor in

setting spousal support, and failure to do so is reversible error. (§ 4320; In re Marriage

of Cheriton (2001) 92 Cal.App.4th 269, 303.) However, our review of the record

concludes the trial court engaged in sufficient analysis and application of the statutory

factors.

       The court considered the parties’ respective earning capacities and the standard of

living established during the marriage. It took note that the parties each earned about

$3,500 monthly, for a joint income of $7,000, establishing a middle-class marital

standard of living. The court also considered that Gloria had retired due to age and poor

health. (§ 4320, subds. (a), (h).) The court expressly articulated Phillip’s ability to pay

spousal support, taking into account his $9,000 monthly income (a third of which is

nontaxable), his standard of living, the needs of each party, their obligations and assets,

the duration of the marriage, and the balance of hardships. (§ 4320, subds. (c)-(f), (j), and

(k).) The other factors are not relevant or applicable. Phillip has not articulated any

reason why additional matters should be considered or would change the outcome.

Considering all the relevant circumstances, the trial court did not exceed the bounds of

reason, and it cannot “fairly be said” that no judge would reasonably make the same

order under the same circumstances. (In re Marriage of Smith (1990) 225 Cal.App.3d

469, 480; In re Marriage of Lim and Carrasco (2013) 214 Cal.App.4th 768, 773.)




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                                             V

                                      DISPOSITION

       The trial court retained jurisdiction to order spousal support, and properly based its

spousal support award on the relevant circumstances. (§§ 4320, 4336.) We affirm the

judgment. Gloria, the prevailing party, shall recover her costs on appeal.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                CODRINGTON
                                                                                           J.

We concur:


RAMIREZ
                        P. J.


HOLLENHORST
                           J.




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