Filed 6/17/13 Marriage of Bazar and Shorr CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


In re Marriage of RENEE BAZAR and                                    B239592
ALAN SHORR.
                                                                     (Los Angeles County
                                                                     Super. Ct. No. BD458883)

RENEE M. BAZAR,

         Appellant,

         v.

ALAN SHORR,

         Respondent.




         APPEAL from an order of the Superior Court of Los Angeles County, Michelle
Court, Judge. Reversed and remanded.
         Renee M. Bazar, in pro. per., for Appellant.
         Klopert & Ravden, Scott Klopert; Alan Shorr, in pro. per., for Respondent.
                                        _________________________
       Renee M. Bazar (formerly Shorr) appeals from an order modifying the spousal
support established in a marital settlement agreement following dissolution of her
marriage to Alan Shorr. We reverse.
                 FACTUAL AND PROCEDURAL BACKGROUND
       1. Previous Proceedings
       In January 2007 Renee1 petitioned for dissolution of her nearly 19-year marriage
to Alan. On June 3, 2008 the superior court entered a judgment of dissolution, status
only, pursuant to Family Code section 2337, subdivision (a).2 On September 15, 2008
Renee obtained a temporary spousal support order of $8,120 per month.
       On January 5, 2010 the parties entered into a marital settlement agreement (MSA)
that reduced Renee‟s spousal support to $5,500 per month “until the death of either party,
remarriage of Renee or further order of court.” The MSA‟s support provision contained a
Gavron admonition pursuant to section 4330, subdivision (b). (See In re Marriage of
Gavron (1988) 203 Cal.App.3d 705, 711-712.) The case was set for trial on Alan‟s
breach of fiduciary duty claim and the remaining property issues.
       On January 6, 2011, the day scheduled for trial, Renee failed to appear and did not
notify the court of the reason for her absence. Alan proceeded with his case. Based on
the evidence he presented, the court awarded Alan $600,000 in damages arising from
Renee‟s breach of fiduciary duty and ordered Renee to reimburse Alan for certain
expenditures. Judgment on the reserved issues was entered on February 7, 2011.
       On March 2, 2011 Renee moved to strike or set aside the judgment on the ground
the court lacked jurisdiction because there had been no final appellate ruling on her writ
petition seeking to disqualify the trial judge (Hon. Mark Juhas). She failed to appear at
the April 11, 2011 hearing on her motion, and it was denied. Renee appealed from the


1
       Although Renee and Alan no longer share the same last name, the matter was filed
under Renee‟s married name. Accordingly, we refer to them by their first names for
convenience and clarity. (See Jones v. ConocoPhillips Co. (2011) 198 Cal.App.4th 1187,
1191, fn. 1.)
2
       Statutory references are to the Family Code unless otherwise specified.

                                             2
judgment; we affirmed. (See In re Marriage of Shorr (Mar. 20, 2013, B232176)
[nonpub.] (Shorr I).)
       2. The Instant Appeal
       Although the issue of spousal support had been settled as part of the MSA, neither
party moved to confirm the settlement under Code of Civil Procedure section 664.6; and
it was not mentioned in the judgment entered after trial. Alan moved to confirm the
terms of the MSA on March 14, 2011, but the motion was not heard until August 24,
2011, well after Renee had appealed the judgment. Judge Juhas declined to rule on the
motion pending resolution of Renee‟s appeal, which, among other issues, sought review
of her motion to disqualify him.
       On October 14, 2011 Alan filed a request for an order to show cause seeking to
reduce his spousal support obligation to $1,881 per month based on his lower income.
On December 19, 2011 Judge Juhas declined to modify support based on Alan‟s
inadequate showing under section 4320 but advised Alan he could supplement his
declaration and retain the initial filing date. (See § 4333.) Renee requested the hearing
be set far enough in the future to allow her to reopen discovery on Alan‟s showing of
reduced income. Based on Alan‟s offer to submit a supplemental declaration by
December 23, 2011, Judge Juhas set the hearing for March 1, 2012.
       Alan filed his supplemental declaration, including an income and expense
declaration, on January 26, 2012. Based on his reduced income since execution of the
MSA and a current DissoMaster calculation,3 Alan sought reduction of his monthly
spousal support obligation to $642. On February 15, 2012 Renee filed a responsive
declaration opposing modification of spousal support on the ground Alan had failed to
file his supplemental declaration within the time limit imposed by the court and
requesting his declaration be stricken.


3
       DissoMaster is a computer software program widely used by courts and the family
law bar for assistance in setting child support and temporary spousal support. (See In re
Marriage of Olson (1993) 14 Cal.App.4th 1, 5, fn. 3; In re Marriage of Zywiciel (2000)
83 Cal.App.4th 1078, 1080.)

                                             3
         The March 1, 2012 hearing proceeded before Judge Michelle Court, who was new
to the case. Based on the pending motion to confirm the terms of the MSA, Judge Court
agreed with Alan‟s counsel to treat the request as a pendente lite, temporary support
proceeding. Judge Court granted the request for modification retroactive to October 15,
2011 and directed Alan‟s counsel to prepare a statement of decision as requested by
Renee.
         Renee filed a notice of appeal on March 2, 2012. Alan‟s counsel submitted an
order, signed by the court on March 27, 2012, and a statement of decision, signed on
April 3, 2012. Renee submitted objections to the statement of decision on April 10,
2012, including, for the first time, an objection the motion had sought modification of a
long-term spousal support agreement and the court improperly failed to consider the
factors set forth in section 4320.
                                      DISCUSSION
         1. Standard of Review
         A support order may be modified only if the moving party demonstrates “a
material change of circumstances since the last order. „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. It includes all factors affecting need and the
ability to pay.” (In re Marriage of West (2007) 152 Cal.App.4th 240, 246 (West); accord,
In re Marriage of Khera and Sameer (2012) 206 Cal.App.4th 1467, 1479; In re Marriage
of Dietz (2009) 176 Cal.App.4th 387, 396.) A showing of changed circumstances is
required whether the prior order contemplated permanent support (see, e.g., In re
Marriage of Geraci (2006) 144 Cal.App.4th 1278, 1297 (Geraci)), pendente lite support
(see, e.g., In re Marriage of Gruen (2011) 191 Cal.App.4th 627, 638; Dietz, at p. 396) or
the amount was established by agreement (see § 3591; West, at p. 247; In re Marriage of
McCann (1996) 41 Cal.App.4th 978, 982). A modification order must be based on the
facts and circumstances existing at the time the modification is requested. (In re
Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 575.)



                                             4
       “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.” (In re Marriage of Hoffmeister (1987) 191 Cal.App.3d
351, 357-358.) An abuse of discretion occurs when there is no substantial evidence of a
material change of circumstances (In re Marriage of Dietz, supra, 176 Cal.App.4th at
p. 398) or the trial court “misperceives the law.” (Los Angeles Times Communications
LLC v. Los Angeles County Bd. of Supervisors (2003) 112 Cal.App.4th 1313, 1327.)
Thus, “„[a]s long as the court exercised its discretion along legal lines, its decision will be
affirmed on appeal if there is substantial evidence to support it.‟” (In re Marriage of
Blazer (2009) 176 Cal.App.4th 1438, 1443.)
       2. The Trial Court Erred by Applying the Standard for a Pendente Lite
          Temporary Award of Spousal Support To Reduce the Existing Permanent
          Award Adopted in the MSA
       “Awards of temporary spousal support do not serve the same purpose, nor are they
governed by the same procedures, as awards for permanent spousal support.” (In re
Marriage of Dick (1993) 15 Cal.App.4th 144, 166.) “The purpose of temporary spousal
support is to maintain the status quo as much as possible pending trial. [Citations.] By
contrast, permanent spousal support is supposed to reflect a complex variety of factors
established by statute and legislatively committed to the trial judge‟s discretion, including
several factors which tend to favor reduced support, such as the „goal‟ that the supported
spouse should become self-supporting within a reasonable period of time.” (In re
Marriage of Schultz (1997) 60 Cal.App.4th 519, 525.)
       The issue here is whether the court properly proceeded by ordering temporary
support under section 3600, which is based solely on the supported spouse‟s immediate
needs and the supporting spouse‟s ability to pay (see, e.g., In re Marriage of Samson
(2011) 197 Cal.App.4th 23, 29), or was instead constrained by the provisions of section




                                              5
4320, which must be considered in modifying an award of permanent spousal support.4
(See, e.g., West, supra, 152 Cal.App.4th at p. 247; Geraci, supra, 144 Cal.App.4th at pp.
1297-1298.) A trial court‟s failure to consider the factors set out in section 4320 in
modifying a permanent order of spousal support constitutes reversible error. (See Geraci,
at p. 1297; In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 304 [“trial judge must

4
        Section 4320 states: “In ordering spousal support under this part, the court shall
consider all of the following circumstances: [¶] (a) The extent to which the earning
capacity of each party is sufficient to maintain the standard of living established during
the marriage, taking into account all of the following: [¶] (1) The marketable skills of
the supported party; the job market for those skills; the time and expenses required for the
supported party to acquire the appropriate education or training to develop those skills;
and the possible need for retraining or education to acquire other, more marketable skills
or employment. [¶] (2) The extent to which the supported party‟s present or future
earning capacity is impaired by periods of unemployment that were incurred during the
marriage to permit the supported party to devote time to domestic duties. [¶] (b) The
extent to which the supported party contributed to the attainment of an education,
training, a career position, or a license by the supporting party. [¶] (c) The ability of the
supporting party to pay spousal support, taking into account the supporting party‟s
earning capacity, earned and unearned income, assets, and standard of living. [¶]
(d) The needs of each party based on the standard of living established during the
marriage. [¶] (e) The obligations and assets, including the separate property, of each
party. [¶] (f) The duration of the marriage. [¶] (g) The ability of the supported party to
engage in gainful employment without unduly interfering with the interests of dependent
children in the custody of the party. [¶] (h) The age and health of the parties. [¶]
(i) Documented evidence of any history of domestic violence, as defined in Section
6211, between the parties, including, but not limited to, consideration of emotional
distress resulting from domestic violence perpetrated against the supported party by the
supporting party, and consideration of any history of violence against the supporting
party by the supported party. [¶] (j) The immediate and specific tax consequences to
each party. [¶] (k) The balance of the hardships to each party. [¶] (l) The goal that the
supported party shall be self-supporting within a reasonable period of time. Except in the
case of a marriage of long duration as described in Section 4336, a „reasonable period of
time‟ for purposes of this section generally shall be one-half the length of the marriage.
However, nothing in this section is intended to limit the court‟s discretion to order
support for a greater or lesser length of time, based on any of the other factors listed in
this section, Section 4336, and the circumstances of the parties. [¶] (m) The criminal
conviction of an abusive spouse shall be considered in making a reduction or elimination
of a spousal support award in accordance with Section 4324.5 or 4325. [¶] (n) Any
other factors the court determines are just and equitable.”

                                             6
both recognize and apply each applicable statutory factor in setting spousal support”];
In re Marriage of Zywiciel (2000) 83 Cal.App.4th 1078, 1081-1082 [abuse of discretion
to substitute computer program (for example, the DissoMaster) for required consideration
and appropriate weighing of statutory factors]; In re Marriage of Olson (1993)
14 Cal.App.4th 1, 9 [same]; see generally Hogoboom & King, Cal. Practice Guide:
Family Law (The Rutter Group 2012) ¶ 17:146, pp. 17-36.2 to 17-36.3 (rev. # 1, 2012).)
       In this case an order of temporary spousal support was entered in September 2008,
not long after entry of the judgment dissolving the marriage. In January 2010 the parties
entered into the MSA, which included an agreement for spousal support “until the death
of either party, remarriage of Renee or order of court.” The MSA thus contemplated the
court would retain post-judgment jurisdiction to modify the stipulated amount and
provided its terms were subject to enforcement under Code of Civil Procedure
section 664.6. Remaining issues were then tried to the court, and a final judgment was
entered in April 2011. It was the parties‟ failure to confirm the settlement in the
judgment that led the court—at the suggestion of Alan‟s counsel—to treat the motion as a
request for modification of pendente lite support.
       The failure of the parties to incorporate the MSA into the judgment, however, did
not render it ineffective. Unless otherwise specifically agreed by the parties in writing or
orally before the court, MSA‟s providing for spousal support are subject to modification
by the court even though the agreement has not been approved by the court or merged
into a judgment or order. (See § 3591, subd. (a);5 In re Marriage of Maytag (1994)
26 Cal.App.4th 1711, 1714-1715 [§ 3591 extends to “private agreements” and is not

5
       Section 3591 provides: “(a) Except as provided in subdivisions (b) and (c), the
provisions of an agreement for the support of either party are subject to subsequent
modification or termination by court order. [¶] (b) An agreement may not be modified
or terminated as to an amount that accrued before the date of the filing of the notice of
motion or order to show cause to modify or terminate. [¶] (c) An agreement for spousal
support may not be modified or revoked to the extent that a written agreement, or, if there
is no written agreement, an oral agreement entered into in open court between the parties,
specifically provides that the spousal support is not subject to modification or
termination.”

                                             7
limited to agreements that have been approved by a court and merged into a judgment or
order], citing Esserman v. Esserman (1982) 136 Cal.App.3d 572, 577 [“neither court
approval nor merger into a decree is necessary before a court may exercise its power to
modify”].)
       Alan has failed to cite any authority for his argument the support provided in the
MSA was in the nature of a temporary award and could be modified under section 3600.
Indeed, the behavior of the parties belies any notion the MSA had no permanent effect
until it had been merged into the judgment. In his original declaration submitted in
support of the request for modification, Alan characterized the MSA as voluntary and
binding and acknowledged he had paid the specified monthly amount of $5,500.6 And,
as discussed, Judge Juhas, who had stayed Alan‟s motion to incorporate the MSA into the
judgment pending resolution of the prior appeal, considered the support provision to be
permanent in nature subject to the constraints of section 4320.
       Of course, if Alan had objected to the support provision in the MSA, he could
have sought relief from its enforcement. If he had been successful in such a challenge,
Renee might then have been justified in seeking an order of temporary support pending
any appeal from that order. (See In re Marriage of Horowitz (1984) 159 Cal.App.3d 377,
381.) But that is not what happened here. Alan did not attack the validity of the MSA;
he simply sought modification of the support provision according to its terms. That is, he
sought a post-judgment modification of support.
       The record below, including the statement of decision drafted by Alan,
demonstrates the order modifying support was based solely on the DissoMaster
calculation he provided and the imputation of $2,000 in monthly income to Renee. It
failed to reflect the mandatory consideration and findings based on the factors contained




6
       Pending its merger into the judgment pursuant to Code of Civil Procedure section
664.6, the MSA remained enforceable by contract remedies. (See In re Marriage of
Corona (2009) 172 Cal.App.4th 1205, 1220-1221.)

                                             8
in section 4320. Accordingly, remand for consideration of the factors set forth in section
4320 is necessary. (See Geraci, supra, 144 Cal.App.4th at p. 1299.)7
                                     DISPOSITION
       The order granting modification of the existing spousal support agreement is
reversed. The matter is remanded to allow the court to consider the factors set forth in
section 4320. Renee is to recover her costs on appeal.




                                                 PERLUSS, P. J.

       We concur:




              WOODS, J.




              SEGAL, J.*




7
       In light of our ruling, we need not consider the other issues raised by Renee.
*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

                                             9
