Opinion
H047596
08-14-2023
In re Marriage of KASTURI BASU AND DEBASHIS BASU. v. DEBASHIS BASU, Appellant. KASTURI BASU, Appellant,
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. 16FL174490)
Wilson, J.
Husband and wife both appeal a post-dissolution award of spousal support to wife. Husband contends that Family Code section 4322 precludes spousal support as a matter of law because wife's separate estate and employment income are sufficient for her proper support. Wife argues the trial court improperly excluded husband's investment income in determining the amount of spousal support.
Undesignated statutory references are to the Family Code.
We conclude that, on the facts and procedural posture here, we are unable to determine whether or how the trial court applied section 4322 when it awarded spousal support to wife. Accordingly, we reverse and remand to the trial court to consider that issue, and we do not reach wife's cross-appeal.
I. Factual and Procedural Background
A. Marriage and dissolution
Debashis Basu (husband) and Kasturi Basu (wife) were married on August 5, 1991. During the marriage, they had two daughters, born in 1993 and 1997.
In March 2016, wife petitioned for legal separation. The parties subsequently stipulated in September 2016 to convert the petition to one for dissolution. In February 2018, the parties stipulated to a status-only dissolution judgment, reserving for trial remaining issues including spousal support.
Section 2337, subdivision (a), provides that "[i]n a proceeding for dissolution of marriage, the court, upon noticed motion, may sever and grant an early and separate trial on the issue of the dissolution of the status of the marriage apart from other issues."
B. Community property
The parties' community property was valued at approximately $20 million, consisting chiefly of investment accounts, cash, a home in San Jose and a home in India. The bulk of the estate consisted of savings generated primarily from husband's earnings during the course of the marriage. The couple saved an average of $60,000 to $80,000 per month, or $720,000 to $960,000 annually.
Prior to trial, the parties agreed to divide up most of the community property. Only one investment account with roughly $5.3 million remained to be divided, of which husband claimed approximately $1 million as separate property. The parties agreed to submit that dispute to a private judge for resolution and proceed with the trial on spousal support, notwithstanding the unresolved portion, as it comprised an insignificant percentage of the overall estate.
The private judge also considered and resolved additional disputes between the parties regarding property division, reimbursements and alleged breach of fiduciary duty. Judgment on these reserved issues was not entered at the time the notices of appeal were filed in this action. Husband requests that this court take judicial notice of that judgment, which he claims was entered on July 6, 2021. We decline the request, in light of our holding below.
Following division of the community property, which occurred prior to the trial on spousal support, wife had $7,710,177 in liquid assets, as well as a house she bought for $2,235,000 in cash from distributed assets.
C. Trial on spousal support
Trial commenced in April 2018. Wife requested permanent spousal support of $13,276 per month, plus 47.6 percent of any income earned by husband over his base salary, up to an annual "marital standard of living" cap of $972,216. She argued that a monthly marital standard of living cap of $81,018 was appropriate based on the parties' disparate salaries.
Husband argued that wife should not receive any spousal support because she was already financially set for life. He argued that her expenses were, at most, $6,750 per month, according to her own income and expense filing, while she earned $108,000 through her employment and generated $17,750 per month in interest income. According to husband, any award greater than zero would be unjust, because wife had no need for support.
The chief disagreement between the parties at trial was whether the marital standard of living should include the couple's savings rate during the marriage. Wife argued that needs are not limited to the basic necessities, but instead must be considered in light of the parties' station in life, so that the marital standard of living must include the historical savings and investments of the parties during the marriage. She contended that the trial court must consider the parties' marital savings history in determining the marital standard of living. Her expert, Lucy Chung, used an income-based approach to determine the marital standard of living, which showed the parties would need between $70,479 and $81,018 per month to replicate it.
By contrast, husband argued that the marital standard of living should not include the couple's savings rate during the marriage. According to him, because the parties' historical savings enable wife to meet and exceed "the general station in life she enjoyed during the marriage," she should not be entitled to spousal support to ensure that she continue to save at the same rate. Husband argued there was no need for either party to continue saving so wife could receive spousal support in an amount that would allow her to save because "additional funds are simply not needed." Husband's expert, James Butera, opined that wife's separate estate should last the rest of her life "without the need to save a penny more," all while wife's assets continue to grow and generate even more income.
Trial concluded on May 23, 2018.
D. Order
The trial court issued its initial statement of decision on September 21, 2018. Following subsequent objections and requests for modifications, the court issued its "Order re: Corrections and Clarifications to Statement of Decision" on August 14, 2019, which is the subject of this appeal (order).
The order addressed five issues: (1) the establishment of permanent spousal support; (2) security for permanent spousal support; (3) retroactivity of permanent spousal support; (4) termination of spousal support; and (5) arrearages on temporary spousal support.
To determine permanent spousal support, the trial court considered and balanced the relevant provisions of section 4320. That section provides that the court shall consider the following circumstances in ordering spousal support: (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 various factors; (b) the extent to which the supported party contributed to the attainment of an education and training 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; (j) tax consequences to each party; (k) the balance of the hardships; (1) the goal that the supported party shall become self-supporting within a reasonable period of time; (m) any criminal conviction of an abusive spouse; and, (n) any other factors the court determines to be just and equitable. (§ 4320.)
The trial court also cited sections 4321 and 4322 among those it considered in setting permanent support. As discussed further below, whether the court actually considered and applied section 4322-which bars spousal support altogether where certain conditions exist-is at the center of this appeal.
The court addressed each of the section 4320 factors in detail. First, it found husband's earning capacity to be sufficient to maintain the parties at the standard of living established during the marriage, and that both husband and wife have high earning capacity (§ 4320, subd. (a)).
Husband obtained a Bachelor's of Science in Electronics and Communications from Jadavpur University in Calcutta, India in 1981. He then earned a Master's in Electrical Engineering from State University of New York at Stony Brook. At the time of trial in this case, husband worked as Senior Vice President of Engineering for Juniper Networks, which he first joined in 1998. His annual income in 2018, the year the trial took place, was projected to be $1,843,128, consisting of salary, bonus, and stock. In the immediately preceding years, he had earned $1,988,939 (2017), $1,731,560 (2016), $1,274,766 (2015), $1,428,113 (2014), $1,272,463 (2013), $665,105 (2012), and $738,097 (2011).
Wife also attended Jadavpur University, where she earned a Bachelor's of Science and a Master's in Economics and Statistics. During the marriage, wife was primarily a homemaker, but also earned her teaching credential from San Jose State in 2007, after which she taught elementary school. At the time of trial, wife was employed as an instructional coach with the Alum Rock School District. Wife earned $98,530 in 2017, $81,730 in 2016, and $54,113 per year between 2015 and 2011.
Second, the trial court found that wife contributed to husband's employment and training by assuming almost all the household duties during the parties' marriage, which allowed husband to focus on his career (§ 4320, subd. (b)). Third, the court found that husband continued to have the ability to command a sizeable salary and therefore pay permanent spousal support to wife (§ 4320, subd. (c)).
Fourth, the court assessed the needs of the parties based on the marital standard of living (§ 4320, subd. (d)). The court first found that the "income-based marital standard of living" must be applied, which "accounts for the parties' significant monthly savings and for the parties' expenses." According to the court, the marital standard of living "is intended by the Legislature to mean the general station in life enjoyed by the parties during their marriage."
Further, the court stated that "[t]he parties' standard of living is how they lived." Because the parties' expenses were fairly modest in light of their income, they were able to amass substantial savings and investments. The court then evaluated the parties' competing suggestions for determining the marital standard of living. Husband advocated for an expense-based approach which focused on the parties' spending during marriage, but ignored the parties' savings rates and artificially depressed family expenses. Utilizing that approach, husband's expert determined the marital standard of living to be $5,659 per month per spouse.
The court rejected that approach, and instead elected to use the income-based approach because it accounted for the parties' substantial savings and investments over the course of the marriage. According to the court, focusing only on expenses would lead to a skewed determination of the marital standard. As the court explained, the savings component "was an integral part of this family's standard of living." "[J]ustice demands more than a bare expense-based approach to the marital standard of living in this case because of the exclusion of the parties' substantial monthly savings and because of Husband's depression of the parties' living expenses." The trial court concluded that "a court may consider an award of spousal support in an amount sufficient to enable the supported spouse to continue to save as the family did during the marriage."
The court then evaluated the competing expert testimony regarding an income-based approach. The parties disagreed over whether to apply an adjustment for minor children pursuant to section 4055, inclusion of private school tuition and college tuition, inclusion of long-term capital gains, and using a second-household inflator to account for the increased costs of running two households, rather than one. The court determined that (1) a section 4055 adjustment should be released when the children turn 18; (2) paying for private school and college was simply an additional factor in the family's marital standard of living; (3) long-term capital gains are income and should be included in the marital standard of living; and (4) a second-household inflator was not warranted.
Husband's expert also provided an income-based approach for the court, in the event it declined to use an expense-based approach.
Continuing with the fifth section 4320 factor, the trial court considered the obligations and assets, including the separate property, of each party after the almost-final division of the community estate (§ 4320, subd. (e)). The court noted that "it is error to disregard a supporting spouse's 'substantial assets' in fixing spousal support, particularly in a case presenting enormous financial disparity between the parties." The court acknowledged that wife had already received $7,330,915 in liquid assets, and would receive at least an additional $2,205,343 in liquid assets, pending resolution of the parties' ongoing dispute over husband's separate property. As the court described it, "[w]ife will have an enormously substantial estate after the final division of the community estate," which husband argues will be more than enough for her to maintain her basic needs and expenses, so that she does not need support.
The parties also disputed the appropriate rate of return to consider in projecting how much income wife could generate from her savings and investments. Husband's expert argued for an 8 percent rate of return, while wife's expert argued for a 3 percent rate. The court elected to apply a 3 percent rate of return on the parties' investable assets.
The court also found that there was a history of domestic violence by husband against wife (§ 4320, subd. (i)), including a conviction in July 2011 (§ 4320, subd. (m)).
Lastly, with respect to the remaining section 4320 factors, the court found that the marriage lasted 24 years and seven months (§ 4320, subd. (f)), which is considered a marriage of long duration under section 4336; section 4320, subdivision (g) did not apply because the couple had no minor children; both husband and wife were healthy for their ages (§ 4320, subd. (h)); the parties did not put on any evidence of tax consequences (§ 4320, subd. (j)); there was no substantial hardship to husband in providing spousal support to wife (§ 4320, subd. (k)); and, with respect to the goal that the supported party be self-supporting within a reasonable period of time, that wife has been working up to her capacity throughout the case (§ 4320, subd. (l)).
The trial court then concluded, after weighing and considering these factors, that husband must pay permanent spousal support to wife. The court ordered husband to pay wife monthly spousal support of $6,000, plus an amount equal to 25 percent of all gross monthly income received by husband above his base salary. The court imposed a "cap" of $972,216 per calendar year. Finally, the court ordered that wife's employment earnings plus investment income-imputed at 3 percent of her investable assets or actual investment returns exceeding that amount-shall be deducted from the cap.
Judgment was entered on September 26, 2019.
E. Appeals
Husband timely appealed the judgment. Wife then timely cross-appealed.
II. Discussion
A. Husband's appeal
Husband argues that "[t]his appeal solely addresses whether the trial court should have denied spousal support altogether, on the basis of Family Code section 4322," which prohibits an award of spousal support when there are no minor children and the supported party has a separate estate sufficient for that party's proper support. He contends that the trial court, in concluding wife was entitled to continue saving at the marital savings rate, improperly confused section 4320's inquiry to determine the amount of support with the "entirely independent" section 4322 inquiry to determine entitlement to support by measuring a party's separate estate to see if it is sufficient. According to husband, "[c]onstruing section 4322 to include savings above living expenses within 'proper support' would render the statute meaningless, converting mandatory denial of support into a discretionary determination, as virtually no separate estate (even a $10 million estate) with any level of savings could ever be 'sufficient' to mandate denial of support."
Husband also argues that the trial court altogether failed to discuss whether section 4322 applies and never addressed whether wife's separate estate was sufficient for her proper support.
Wife argues that section 4322 does not apply here because: (1) the couple have children, which takes the case out of the purview of the statute; (2) a party's former community property should not be considered as part of her separate estate under the statute; and (3) "proper support" is determined by the marital standard of living, which extends beyond basic needs and includes savings.
1. Applicable law and standard of review
Section 4322 provides: "In an original or modification proceeding, where there are no children, and a party has or acquires a separate estate, including income from employment, sufficient for the party's proper support, no support shall be ordered or continued against the other party." Under this statute, denial of spousal support is mandatory "if the sufficiency threshold is met, irrespective of circumstances the court would otherwise consider under section 4320." (In re Marriage of Terry (2000) 80 Cal.App.4th 921, 928 (Terry).)
An appellate court typically reviews a trial court's award of spousal support and consideration of the section 4320 factors for an abuse of discretion. (In re Marriage of McCann (1996) 41 Cal.App.4th 978, 982-983.)" 'In making its spousal support order, the trial court possesses broad discretion so as to fairly exercise the weighing process contemplated by section 4320, with the goal of accomplishing substantial justice for the parties in the case before it.' [Citation.] In balancing the applicable statutory factors, the trial court has discretion to determine the appropriate weight to accord to each." (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 304, superseded by statute on other grounds as stated in In re Marriage of Morton (2018) 27 Cal.App.5th 1025, 1049.)
Appellate courts have reviewed section 4322 determinations for substantial evidence. In Dallman v. Dallman (1959) 170 Cal.App.2d 729 (Dallman), the appellate court held that "[b]ecause evidence must be taken so that the [trial] court may determine what amount is necessary for one's proper support, the issue is one of fact," which the appellate court reviews for substantial evidence. (Id. at p. 736 [applying Civ. Code, § 142, predecessor to § 4332].) Similarly, in In re Marriage of McNaughton (1983) 145 Cal.App.3d 845, the appellate court held that "[w]hether an estate is sufficient for one's proper support is a fact question for the trial court," which is reviewed for substantial evidence. (Id. at p. 850.)
We acknowledge that appellant relies on Terry to assert that the proper standard of review for a section 4322 determination is de novo. In Terry, the appellate court characterized the question of whether, under section 4322, a separate estate is sufficient for a party's proper support such that no support shall be ordered as "a mixed question of fact and law." (Terry, supra, 80 Cal.App.4th at p. 928.) In reviewing a mixed question of fact and law, the California Supreme Court has explained in a different context that" '[t]here are three steps involved in deciding a mixed fact/law question.'" (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 800 (Ghirardo).) The first step, regarding establishing the facts, is subject to substantial evidence review, while the second step of selecting the applicable law is subject to de novo review. (Ibid.; Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888 (Crocker National Bank).) The California Supreme Court has observed that" 'as to the third step, the application of law to fact, difficulty is encountered and views as to the correct approach are mixed.'" (Ghirardo, supra, at p. 800.)
The California Supreme Court explained," '" 'In our view, the key to the resolution of this question is the nature of the inquiry that is required to decide "whether the rule of law as applied to the established facts is or is not violated." [Citation.] If application of the rule of law to the facts requires an inquiry that is "essentially factual," [citation]-one that is founded "on the application of the fact-finding tribunal's experience with the mainsprings of human conduct," [citation]-the concerns of judicial administration will favor the [trial] court, and the [trial] court's determination should be classified as one of fact reviewable under the clearly erroneous standard. If, on the other hand, the question requires us to consider legal concepts in the mix of fact and law and to exercise judgment about the values that animate legal principles, then the concerns of judicial administration will favor the appellate court, and the question should be classified as one of law and reviewed de novo.'" '" (Ghirardo, supra, 8 Cal.4th at pp. 800-801; accord, Crocker National Bank, supra, 49 Cal.3d at p. 888 [addressing whether mixed questions of fact and law require substantial evidence review or independent review].)
In Terry, the appellate court majority determined that the "mixed question of fact and law" (Terry, supra, 80 Cal.App.4th at p. 928) under section 4322 regarding whether a party's separate estate was sufficient for that party's proper support required de novo review. (Terry, supra, at p. 929.) The majority reasoned that de novo review was appropriate because the relevant facts were (1) "not in dispute" (id. at p. 928), and (2) "[t]he trial court's section 4322 determination that a separate estate is or is not sufficient for proper support is not a factual description or statement. Rather, it is a legal conclusion that an estate reasonably could, or could not, generate sufficient income to provide for a spouse's proper support, with legal ramifications for both parties." (Id. at p. 929.) In contrast, the dissent in Terry determined that the substantial evidence standard of review should apply because (1) "the parties hotly disputed almost" (id. at p. 938 (dis. opn. of Sepulveda, J.)) everything and the trial court "resolved a number of hotly contested factual issues" (id. at p. 941 (dis. opn. of Sepulveda, J.)) and (2) "the application of the statute as interpreted to the disputed facts" was"' "essentially factual." '" (Id. at p. 937, fn. 6 (dis. opn. of Sepulveda, J.).)
In this case, where the facts are clearly in dispute, we do not view Terry as controlling on the standard of review. Nevertheless, we need not determine the applicable standard of review for a section 4322 determination because, as we explain below, the trial court made no express findings on section 4322 and we are unable to determine whether or how the trial court applied the statute. Further, we are unable to imply findings in support of the order because husband objected to the proposed statement of decision on this ground. (See Code Civ. Proc., § 634.) Therefore, we conclude remand is necessary.
Husband argues for de novo review because the underlying facts were allegedly undisputed. We do not agree that the facts were undisputed, though. As documented above in the statement of facts, the parties disagreed about numerous facts and pieces of evidence, including aspects of the income-based approach for establishing the marital standard of living, and the appropriate rate of return.
2. Analysis a. Trial court's consideration of section 4322
We begin by discussing the trial court's consideration and application of section 4322. As noted above, husband argues that the trial court never determined whether section 4322 applied, despite his raising and briefing the issue at length. In his trial brief, for instance, husband discussed the issue, presenting the same arguments he does on appeal. Husband raised the issue again in his objections and request for clarification on the trial court's proposed statement of decision, noting that "[t]he court has only discussed Family Code [section] 4322 within its discussion of Family Code [section] 4320[, subdivision] (e) and never mentions application of [section] 4322 in discussing termination of spousal support. The Family Code [section] 4322 standard is distinct from [section] 4320, and the Court's application of [section] 4322 should be addressed independently from [section] 4320." Accordingly, husband contends, the trial court never "expressly compared the income [wife] would receive from her separate estate to her legitimate expenses."
Despite husband repeatedly raising the issue, the trial court made no findings under section 4322. Instead, the trial court's order, while detailed, is limited to considering the section 4320 factors to determine whether to award permanent spousal support. As summarized above, the order considered each of those factors in turn, and then concluded that permanent spousal support was warranted. There was no independent analysis of section 4322, or any indication the trial court considered its application. Where a judgment or order provides no insight into how the court weighed relevant statutory factors, it raises the question" 'whether the court in fact weighed or even gave due consideration to the statutory factors.'" (In re Marriage of Diamond (2021) 72 Cal.App.5th 595, 604, quoting In re Marriage of Geraci (2006) 144 Cal.App.4th 1278, 1297 [in that situation, "an appellate court may decline to accord the usual deference to the court's exercise of discretion and remand for the court to reconsider the issue"].)
While the order did cite section 4322, it did not contain any analysis specific to the statute. At the beginning of the order, the trial court quoted sections 4321 and 4322, but then proceeded with its analysis of the section 4320 factors, with no discussion of section 4322. After analyzing the section 4320 factors in succession, the court summarized its findings by stating its "[c]onclusion on Family Code [section] 4320 [f]actors." The remainder of the order addressed security, retroactivity, termination, and arrearages, but similarly omitted any discussion of section 4322.
Section 4321 provides: "In a judgment of dissolution of marriage or legal separation of the parties, the court may deny support to a party out of the separate property of the other party in any of the following circumstances: [¶] (a) The party has separate property, or is earning the party's own livelihood, or there is community property or quasi-community property, sufficient to give the party proper support. [¶] (b) The custody of the children has been awarded to the other party, who is supporting them."
The trial court also purported to distinguish Terry on various grounds, including that Terry dealt with a modification proceeding rather than an original proceeding, and that husband here has substantial separate property investments. Setting aside the merits of those distinctions, though, they do not constitute an analysis of section 4322 or a determination of whether the section applies.
Portions of the trial court's discussion of the section 4320 factors did address issues that arguably relate to a section 4322 analysis. For instance, section 4320, subdivision (d) requires consideration of the needs of the parties based upon the marital standard of living. In addressing that factor, the trial court applied the income-based approach to establish the parties' marital standard of living, which accounted for the couple's significant monthly savings during the marriage. In addition, section 4320, subdivision (e) requires consideration of the obligations and assets of each party, including their separate estates. Here, the trial court acknowledged that wife has an "enormously substantial" separate estate, including the $7,330,915 in liquid assets she had already received, and to which the court applied a projected 3 percent rate of return. The court also acknowledged husband's argument that wife's separate estate will be more than enough for her to maintain her basic needs and expenses.
However, the court's discussion of those two factors of section 4320 cannot be construed as an analysis or consideration of whether section 4322 applies. As a stand-alone statute, section 4322 operates independently of section 4320. Construing a discussion of section 4320, subdivisions (d) and (e) to constitute an analysis of section 4322 would render the latter statute superfluous, contrary to longstanding axioms of statutory interpretation. (Engelmann v. State Board of Education (1991) 2 Cal.App.4th 47, 56.) Among other things, section 4322 requires a determination of the supported party's "proper support," a term that does not appear in section 4320. Section 4322 also requires a determination of whether the supported party's separate estate is "sufficient" for that proper support. Section 4320, by contrast, does not require consideration of the sufficiency of a party's separate estate for that purpose, but instead only requires consideration of the "obligations and assets, including the separate party, of each party," in the general context of ordering spousal support. (§ 4320, subd. (e).)
In the context of its consideration of section 4320, subdivision (e), the trial court did address husband's argument that wife's separate estate will be more than enough for her to maintain her basic needs and expenses and that she does not need any support. The court also expressly acknowledged husband's reliance on section 4322 and Terry, and his argument that the court "must deny support against a party where there are no children and the other party acquired a separate estate, including income from employment, sufficient for her proper support pursuant to Family Code section 4322." However, the court did not actually respond to those arguments or otherwise analyze whether wife's separate estate and employment income were in fact sufficient for her proper support.
In addition, the court made what appear to be inconsistent statements regarding whether wife's separate property assets were sufficient for her to live above the marital standard of living. The court stated that it was considering wife's "current now-separate property assets," and that wife "is already living well above her day-to-day marital standard of living right now." Similarly, the court also stated that wife's liquid assets of $7,710,177 are sufficient for her to invest and realize "enough to live well above the marital standard of living." However, those statements appear to be inconsistent with the trial court's conclusion that husband must pay permanent spousal support to wife. Given that apparent inconsistency, we cannot presume the trial court made, or would make, any particular determination pursuant to section 4322.
For that reason, we cannot make any implied findings in support of the trial court's decision, because we do not know what that decision was or even whether one was actually made with respect to section 4322. (Brewer v. Carter (2013) 218 Cal.App.4th 1312, 1320 [reviewing court "must presume the trial court fully discharged its duty to consider all of the relevant statutory factors and made all of the factual findings necessary to support its decision for which there is substantial evidence"].) In addition, the doctrine of implied findings generally does not apply where the statement of decision contains ambiguities or omissions that were timely brought to the trial court's attention. (Ruiz v. County of San Diego (2020) 47 Cal.App.5th 504, 521 [no implied findings where, "in objections to the initial statement of decision, the County called the court's attention to this omission and urged the court to make that finding"]; Code Civ. Proc., § 634 ["When a statement of decision does not resolve a controverted issue . . . and the record shows that the omission . . . was brought to the attention of the trial court . . . prior to entry of judgment . . . it shall not be inferred on appeal . . . that the trial court decided in favor of the prevailing party as to those facts or on that issue."].)
b. Remedy
Because we are unable to determine whether or how the trial court applied section 4322, we will remand the matter to the trial court to consider the issue in the first instance. "A trial court's failure to exercise discretion is itself an abuse of discretion, and we review such action in accordance with that standard of review." (In re Marriage of Gray (2007) 155 Cal.App.4th 504, 515.) Where the trial court has failed to exercise its discretion, the court's order "cannot stand." (Doan v. State Farm General Ins. Co. (2011) 195 Cal.App.4th 1082, 1099.)
In similar circumstances, reviewing courts have elected to remand to the trial court to make those factual determinations in the first instance. (See, e.g., Kemp Bros. Construction, Inc. v. Titan Electric Corp (2007) 146 Cal.App.4th 1474, 1478 [remanding for trial court with directions to weigh relevant factors]; Barber v. Long Beach Civil Service Commission (1996) 45 Cal.App.4th 652, 659-660 [where appellate court's review is limited to determination whether substantial evidence support's trial court's conclusions, but trial court failed to perform its duty, "we are unable to perform ours, and the matter must be remanded"]; Linton v. DeSoto Cab Co., Inc. (2017) 15 Cal.App.5th 1208, 1225-1226 [remanding where trial court failed to properly analyze and weigh evidence].)
Husband argues that the trial court's findings and wife's own evidence "inescapably show that her separate estate will easily meet, and exceed, her proper support needs." To the extent husband contends that we should determine section 4322 applies here as a matter of law-thereby bypassing the step of remanding to allow the trial court to exercise its fact-finding function-we reject the invitation for the same reasons outlined above. In short, we do not know how the trial court will resolve the factual determinations under section 4322.
Moreover, on this record, we cannot presume how the trial court would analyze section 4322. As we have noted, "proper support" in section 4322 is not equivalent to the "needs" of the supported party based on the standard of living established during the marriage. (§ 4320, subd. (d).) For that reason, we cannot project what the trial court will determine constitutes wife's "proper support," notwithstanding its determination that the parties' historic savings rate is part of the marital standard of living. Similarly, the sufficiency of a party's separate estate in section 4322 is not the equivalent of the "assets, including the separate property, of each party." (§ 4320, subd. (e).) Therefore, we cannot presume what underlying factual determinations the trial court will make regarding section 4322.
The parties disagree on the meaning of the phrase "where there are no children" in section 4322. Husband contends it means "no minor children," whereas wife argues it means exactly what it says-that is, where there are no children at all. We conclude, as a matter of law, that the phrase means "no minor children." (Dallman, supra, 170 Cal.App.2d at p. 733 ["[b]ecause the parties' children had already reached majority before this suit was commenced, the case may be treated as one 'where there are no children' "].)
B. Wife's cross-appeal
Wife argues on appeal that the trial court erred by declining to consider husband's investment income in determining the base monthly spousal support.
Because we reverse the judgment and remand for the trial court to consider application of section 4322 and whether spousal support must be denied altogether, we do not reach wife's cross-appeal.
III. Disposition
The judgment is reversed and the matter is remanded for the trial court to consider whether Family Code section 4322 applies. The parties shall bear their own costs on appeal.
WE CONCUR: Bamattre-Manoukian, Acting P.J. Danner, J.