Opinion
B312732 B321000
11-28-2023
ARIZA NIREL FEINGOLD, Plaintiff and Appellant, v. THOMAS MICHAEL FEINGOLD, Defendant and Respondent.
Keiter Appellate Law and Mitchell Keiter for Plaintiff and Appellant. Ernesto Paz Rey for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BD645713 Dianna Gould-Saltman, Judge. Affirmed.
Keiter Appellate Law and Mitchell Keiter for Plaintiff and Appellant.
Ernesto Paz Rey for Defendant and Respondent.
COLLINS, J.
Appellant Ariza Feingold appeals from the judgment dissolving her marriage to respondent Thomas Feingold. Arizacontends the judgment must be reversed because the trial court improperly denied her requests to continue the trial and for funds to pay for counsel. She further contends that the trial court made several errors regarding spousal support: excluding relevant evidence, miscalculating the duration of the marriage, and scheduling the support payments to step down and terminate without regard to her progress toward self-sufficiency. Ariza also contends the court erred by denying her request to renew a domestic violence restraining order (DVRO) against Thomas, both by applying an incorrect legal standard and by declining to hear testimony from their minor daughter, C., at the hearing. We affirm.
Because the parties share a surname, we refer to them by their first names to avoid confusion. No disrespect is intended.
BACKGROUND
I. Parties and Initial Separation
Ariza and Thomas wed on February 22, 2009. C. was born in September 2010. Prior to the marriage, Ariza obtained an associate degree in journalism and a bachelor's degree in business administration. She worked as an accountant, receptionist, and paralegal at various points prior to the marriage, earning around $55,000 per year, but stopped working outside the home after the parties wed. Thomas was employed as a paramedic at all relevant times. He earned approximately $140,000 per year. The family lived in a condominium that Thomas bought before the marriage.
Ariza filed a petition for dissolution of the marriage on September 12, 2016. Both Ariza's petition and Thomas's response filed on September 16, 2016 identified September 6, 2016 as the date of separation.
In October 2018, the parties began taking steps toward reconciliation. They resumed living together sometime in 2019.
II. DVRO
On February 11, 2020, Ariza and Thomas were involved in a verbal and physical scuffle over a computer bag while C. was present. Ariza, who sustained some bruising during the incident, called law enforcement and obtained an emergency protective order for herself and C. She subsequently sought and received a temporary DVRO on February 19, 2020. The hearing on the DVRO, originally scheduled for March 11, 2020, was continued numerous times before ultimately being held on February 4, 2021.
Both parties were represented by counsel at the DVRO hearing, though Ariza's counsel, Jonathan LaFrance, stated that he was "making a special limited scope appearance." Both parties testified about the February 11, 2020 incident; Thomas also called one of the police officers who responded to the incident. C. did not testify, but the court reviewed Ariza's video of the incident, which was admitted into evidence over Thomas's objection. At the conclusion of the hearing, the court, Judge Dianna Gould-Saltman, found that Thomas did not strike Ariza with the computer bag or otherwise intentionally injure her. The court nevertheless found that Ariza "met her burden" because Thomas "should have let go of the bag," and "[n]ot having let go, it becomes fully his responsibility if somebody is injured." The court extended the DVRO for six months, to August 4, 2021.
Ariza timely filed a notice of appeal. Her counsel, LaFrance, filed a notice of completion of his limited scope representation on April 5, 2021. At a May 24, 2021 hearing concerning attorney fees for LaFrance, the transcript of which is not in the appellate record, the court ordered Thomas to pay $18,000-approximately 78 percent-of the requested sum as his "contributive share" of fees related to the DVRO proceeding.
Ariza's appeal from the February 4, 2021 DVRO was consolidated with her subsequent appeal from the judgment of dissolution. Ariza does not make any arguments regarding the February 4, 2021 DVRO.
On August 3, 2021, Ariza filed a request to renew the DVRO for five years. In her accompanying declaration filed "in lieu of personal testimony," Ariza asserted that Thomas violated the DVRO on January 14, 2021, by being present at a restaurant he knew C. frequented weekly at a specific time. She also claimed that Thomas vandalized the lock on a storage unit in the condominium's garage, and on a separate occasion broke into her car and stole paperwork including her copy of the DVRO. Ariza also provided a declaration from family friend Michael Goland, who had been present with C. during the January 14, 2021 incident. She did not provide a declaration from C. or otherwise indicate that C. wished to provide testimony. Thomas denied the accusations and opposed extension of the DVRO. The court set the hearing for October 1, 2021.
III. Continuance Requests A. First Request
On September 29, 2021, Ariza, in propria persona, filed a form request to continue the October 1, 2021 DVRO renewal hearing, an October 4, 2021 mandatory settlement conference (MSC), and the dissolution trial set for October 14 and 15, 2021. In her accompanying single-page declaration, Ariza stated that she was "seeking a continuance of at least 75 days" to reopen discovery and enable LaFrance, whose office had been beset by COVID-19, to "assist me with preparing to put the case on for trial." Ariza attached a longer declaration from LaFrance, which stated it was prepared at her request. LaFrance stated that his office had been unable to assist Ariza in preparing for the upcoming hearings due to "extreme conditions" wrought by the pandemic, and that Ariza had been unable to retrieve her files or "meet her financial obligations to my office or pay a retainer to my office for the upcoming hearings due to attorney's fees earned and owed." He continued, "I believe that given a reasonable continuance of all matters in this case, and an order to reopen discovery, that Ms. Feingold would like me to continue to represent her in this matter and based on representations she has made to me, given more time, say around 75 days, that she will be able to meet her obligations to my office."
Ariza filed a substitution of attorney form replacing LaFrance with herself on October 1, 2021. The signatures on the form are dated June 30, 2021.
Thomas agreed to continue the DVRO renewal hearing to the time of trial, but he asserted there was no good cause to continue the other proceedings.
On September 30, 2021, the trial court, Judge Anne Richardson, largely denied the request. She stated, "The court will consider continuing the request to renew the restraining order at the hearing on October 1, 2021. However, this court cannot continue the MSC nor the long cause trial set by Judge Dianna Gould-Saltman, nor can this court add additional matters to be heard by Judge Gould-Saltman in the current two-day trial set in Dept. 35. The moving party may request orders regarding the long cause trial with Judge Gould-Saltman, and orders regarding the MSC with Department 2."
B. Second Request
On October 13, 2021, the day before trial was set to begin, Ariza filed another request for continuance. In an accompanying declaration, Ariza explained that the primary reason for her request was to enable LaFrance to "prepare for trial and prepare me for trial." She asserted that because LaFrance's office had been "in disarray for the past 3 months," she was "consistently" unable to communicate with LaFrance or his staff and was "unable to obtain [her] file documents," of which LaFrance had been in possession "since the end of last year." Ariza further asserted that LaFrance "has been paid to appear at my long cause trials" but seemed to be "quite overwhelmed" and had "missed important discovery deadlines." She attached LaFrance's previous declaration as an accompanying exhibit.
The trial court, Judge Gould-Saltman, denied Ariza's request the same day after reviewing it in chambers. The minute order states that the court "finds no exigent circumstances."
IV. Dissolution Trial
On October 14, 2021, Ariza appeared for the dissolution trial in propria persona. She informed the court that she had filed two requests for continuance and was not aware they had been denied. After the court explained that there was no good cause to grant the requests, Ariza asserted that appearing without counsel was prejudicial to her and orally requested a one week continuance. The court denied the request but told Ariza it would allow Thomas to proceed first "so that you can settle in."
On the first day of trial, Ariza initially appeared remotely from her car. She then appeared remotely from a room in her home, accompanied by Michael Goland despite the court's repeated admonitions that Goland could not be present because Ariza planned to call him as a witness. Ariza ultimately came to the courthouse during a recess in the proceedings and appeared in person for the remainder of the trial.
Ariza and Thomas both testified. Thomas also called an expert who had calculated the marital community's interest in the separate property condominium; the expert performed calculations using both Thomas's and Ariza's proposed final separation dates. The court sustained Thomas's objections to Ariza's attempt to elicit competing expert testimony from family friend Goland, because Ariza's witness list had only disclosed an unnamed "real estate professional." The court allowed Goland to testify as a rebuttal witness regarding the parties' dates of separation and reconciliation; he testified that he saw Thomas slap both C. and Ariza at a religious event the family attended as a group in 2019. Throughout the trial, Ariza made several remarks about her need to pay LaFrance and the lack of a "level playing field" in the proceedings.
At the conclusion of the trial, the court made numerous findings and rulings regarding child support, spousal support, and other issues. As relevant to this appeal, the court found that the parties were separated between September 16, 2016 and October 2018. It further found that the parties "did intend it to be permanent at that time, but they thereafter reconciled, and the court so finds in October of 2018.... The court finds that the parties finally separated permanently on February 11, 2020. And there was no reconciliation thereafter." For the purposes of the community property interest in Thomas's condominium and a qualified domestic relations order regarding Thomas's pension, the court found the length of the marriage to be "approximately 11 years." For purposes of spousal support, however, the court deducted from the 11 years the approximately two years the parties lived "separate and apart without the intention of resuming their marital relationship between September 2016 and October 2018." The court accordingly concluded the marriage lasted "just under nine years," below the 10-year threshold that would render it a "marriage of long duration" for purposes of Family Code section 4336.
All further statutory references are to the Family Code unless otherwise indicated.
The court also made detailed findings regarding all the factors enumerated in section 4320 as relevant to determination of spousal support. Based on those findings, the court ordered Thomas to pay spousal support to Ariza to afford her "time to seek full-time employment." The court ordered a "step-down order between now and the time spousal support jurisdiction terminates as follows: from October 15, 2021, to December 31, 2021, spousal support shall be in the amount of $2,000 per month. Beginning January 1, 2022 until June 30[,] 2022, spousal support will be $1,500 per month. From July 1, 2022 until June 30th, 2023, spousal support will be $1,000 per month. From . . . July 1, 2023 until December 31, 2023, will be $750 per month. And on January 1, 2024, spousal support will terminate." The court added that "[f]or every month or portion thereof that petitioner remains in the condo after respondent has paid her the equalization payment and 30 days elapsed, respondent will be credited with having paid spousal support of $4,250 per month, which is the mid-point of the value petitioner put on the use of that condo. And that amount may be subtracted from any subsequent payments. This may have the result of jurisdiction to award spousal support terminating sooner than the anticipated date." The court also ordered that spousal support was "modifiable during the period the court retains jurisdiction."
V. DVRO Extension Hearing
The court heard Ariza's request to extend the DVRO on October 21, 2021. Both parties were represented by counsel; Ariza had a new limited scope attorney, Jeffrey Sklan. At the outset of the hearing, the court told the parties that their declarations were admitted as their direct testimony, subject to cross-examination. It also advised that they could "augment the declaration" with testimony about any events that occurred since the declarations were filed.
Sklan represented to the court that C. had "expressed her desire, independently of her mother's, to have [the DVRO] be extended on her behalf" and asked how he could get C. "before the court." Thomas's counsel objected, arguing that the underlying DVRO had been issued without testimony from C. and that C. could pursue her own DVRO through her dependency court counsel. After the court confirmed with Sklan and Ariza that there were no new incidents post-dating the declarations that involved C., it invited Sklan to put on any evidence post- dating the declarations. Sklan then asked, "the court is saying then that you are not going to hear from their daughter?" The court said, "That's correct." The court added that C. was "an additional protected party[,] [n]ot the petitioning party," and that she "could certainly be a petitioning party" through her counsel in dependency court.
After hearing testimony from both Ariza and Thomas, and argument from their counsel, the court declined to extend the DVRO. It found that Thomas had completed an anger management program and a batterer's intervention program without being ordered to do so, and "having weighed the credibility of the parties, finds respondent to be credible." It continued, "The court does not find that petitioner is not credible with regard to the incidents she describes, however, she jumps to conclusions that the court does not as to causation. The court does not find that petitioner has tied respondent to the incidents . . . at the condo. And the court finds respondent credible in his explanation about what occurred. The court does not find that respondent intentionally or inadvertently violated restraining orders at the pizza restaurant. The court finds respondent credible with regard to his explanation. And finds it logical that when he saw there was already an order in, he immediately left. It was not his intention to try to be there. So the court does not find that there is a reasonable probability of future abuse. And the court does not find that there is a sufficient basis to renew the restraining order. The court denies the request for the renewal."
VI. Judgment and Appeal
The court entered a judgment of dissolution on April 22, 2022. Ariza timely appealed. This court consolidated her appeal of the February 4, 2021 restraining order and the judgment of dissolution for all purposes.
DISCUSSION
I. Attorney Fees
Ariza contends the dissolution must be retried "because the court failed to ensure a level playing field for the parties" by denying Ariza's requests for continuance and failing to provide her funds to obtain counsel. She argues that "the playing field was not level because Thomas could afford to pay his counsel, but Ariza could not afford to pay hers." She asserts that section 2030 required the court to ensure that she had equal access to legal representation, and further asserts that her lack of counsel deprived her of a fair hearing and could have been remedied had the trial been continued.
Section 2030 provides that in dissolution proceedings, "the court shall ensure that each party has access to legal representation, including access early in the proceedings, to preserve each party's rights by ordering, if necessary based on the income and needs assessments, one party . . . to pay to the other party, or to the other party's attorney, whatever amount is reasonably necessary for attorney's fees and the cost of maintaining or defending the proceeding during the pendency of the proceeding." (§ 2030, subd. (a)(1).) It further provides that "[w]hen a request for attorney's fees and costs is made, the court shall make findings on whether an award of attorney's fees and costs under this section is appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties. If the findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney's fees and costs. A party who lacks the financial ability to hire an attorney may request, as an in pro per litigant, that the court order the other party, if that other party has the financial ability, to pay a reasonable amount to allow the unrepresented party to retain an attorney in a timely manner before proceedings in the matter go forward." (Id. § 2030, subd. (a)(2).)
The court's obligations under section 2030 arise only after a request for attorney fees is made. (In re Marriage of Knox (2022) 83 Cal.App.5th 15, 29 (Knox).) Requests generally must be made in writing and satisfy the filing and service requirements set forth in California Rules of Court, rule 5.427. (Id. at pp. 29-30.) They may also be "made without notice by oral motion in open court . . . [a]t the time of the hearing of the cause on the merits." (§ 2031, subd. (b)(1); see also Knox, supra, 83 Cal.App.5th at p. 29.)
A court's decision whether to award attorney fees under this statute requires it "to resolve questions of law, make findings of fact, and exercise discretionary authority to resolve certain issues. Each of these aspects of the family court's decision is subject to a different standard of review." (Knox, supra, 83 Cal.App.5th at p. 25.) We review questions of law de novo, factual findings for substantial evidence, and discretionary determinations for abuse of that discretion. (Ibid.) As in any appeal, the court's decision is "presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment." (Jameson v. Desta (2018) 5 Cal.5th 594, 609.)
Ariza points to comments she made during the dissolution trial about the lack of a level playing field and her need to pay LaFrance $50,000, suggesting they constitute a request for fees under section 2030. The comments included assertions that she had not been awarded attorney fees, that she owed LaFrance $50,000, and that Thomas, who "made all the money" during their marriage, had paid his own counsel $57,000. She asserts the trial court should have immediately addressed the request and erred by ruling on fees after trial. She argues that Knox, supra, 83 Cal.App.5th 15 is analogous. We are not persuaded.
In Knox, wife Dawn filed a request for pendente lite attorney fees in May 2018, approximately one year before the dissolution trial began. (See Knox, supra, 83 Cal.App.5th at pp. 23, 31.) The hearing on the request was continued numerous times and the matter was not heard before trial. (See id. at pp. 31-32.) On the first day of trial, May 23, 2019, Dawn appeared in propria persona and told the court she was representing herself because she could "no longer afford" counsel. (Id. at p. 34.) On the second day of trial, some two months later, Dawn told the court, "I would like to address attorney fees and costs." (Id. at p. 37.) The court ultimately addressed her request well after trial, in a written ruling on reserved issues. (See ibid.)
On appeal, Dawn argued that the court erred by delaying consideration of her request for attorney fees and costs "despite Court filings and her repeated attempts to have the issue addressed during the [t]rial proceedings." (Knox, supra, 83 Cal.App.5th at p. 37.) The appellate court agreed that the trial court erred by waiting until after trial to address Dawn's request for pendente lite fees. (Id. at p. 38.) It found that Dawn made the request for purposes of section 2030 in May 2018, triggering the trial court's statutory obligation to address the issue with reasonable promptness. (Ibid.) The appellate court further concluded that the trial court violated that obligation by delaying resolution of the motion until after trial. (Ibid.) It did not decide precisely when the trial court should have heard the request, though it observed, "a[t] a minimum, the court should have heard Dawn's request on May 23, 2019, when Dawn informed the court that she could not afford an attorney." (Id. at p. 38 &fn. 13.) The court concluded the error was prejudicial because Dawn, in propria persona, was unable to get a crucial document admitted into evidence. (See id. at pp. 40-41.) Notably, the appellate court did "not reach the issue of whether [Dawn's oral] statement constitutes 'an oral motion in open court' for purposes of section 2031, subdivision (b)." (Id. at p. 37, fn. 12.)
Ariza implies that her comments during trial were analogous to Dawn's, and emphasizes the Knox court's observation that the trial court should have heard Dawn's request when she stated that she could not afford an attorney on the first day of trial. Even if were to make the substantial logical leap necessary to conclude that Ariza's remarks were akin to Dawn's, Knox explicitly did not decide whether Dawn's statements were sufficient to constitute an oral motion for fees under sections 2030 and 2031. (See Knox, supra, 83 Cal.App.5th at p. 37, fn. 12.) Cases are not authority for propositions they do not consider. (E.g., Geiser v. Kuhns (2022) 13 Cal.5th 1238, 1252.) Knox concluded only that Dawn's formally filed request for attorney fees triggered the trial court's obligations under section 2030, and that the court failed to undertake those obligations with reasonable promptness. Ariza does not cite any other authority for the proposition that her comments, which were not explicit requests for fees or invocations of section 2030, constituted a motion for fees.
Ariza also fails to point to any written pendente lite request for attorney fees to pay LaFrance for the dissolution trial. Indeed, no such request appears in the appellate record, and Thomas's counsel represented to the court during trial that he did not have notice of any such request. Without a request, the court did not have an obligation to "ensure parity" under section 2030. Ariza's assertions that the court evinced a "complete unfamiliarity with the law compelling parity" and "indifference to the parties' unequal access to legal representation" thus are not well taken, particularly in light of our presumption that the trial court's ruling was correct.
The declaration Ariza filed in support of her request to continue the DVRO extension hearing cited section 2030 and asked the court to order Thomas to pay a reasonable amount toward her attorney fees. This declaration was filed after the dissolution trial concluded.
Ariza further suggests that Knox is analogous because the trial court here ruled on fees after the dissolution trial concluded. This suggestion is somewhat misleading. In Knox, Dawn requested fees at the outset of proceedings for the purpose of securing counsel; that is the motion the court heard after trial. Here, the fee request the court resolved after trial was made pursuant to In re Marriage of Borson (1974) 37 Cal.App.3d 632, which permits a discharged attorney to bring a motion for attorney fees to be paid directly by the opposing party. Ariza's former counsel, who represented her before LaFrance, filed the motion, and both Ariza and Thomas's counsel represented to the court that Ariza had revoked authorization for former counsel to prosecute it. (See In re Marriage of Borson, supra, 37 Cal.App.3d at pp. 638-639.) Ariza also told the court, "Okay," after the court stated that it planned to bifurcate the issue of attorney fees and that she would be given the opportunity to address her revocation at that time. This seeming consent to the proposed procedure undercuts any inference that Ariza wanted to address fees immediately, or that the court failed to act on any request with reasonable promptness.
II. Continuances
Ariza next argues that the court erred in failing to grant her requests for continuance because the denials resulted in a hearing that was unfair to her. She asserts that her lack of legal training prejudiced the presentation of her case, since she "did not understand the difference between direct and crossexamination," "did not know how to rephrase questions to render them non-leading," "could not formulate legal objections," and "did not even know which factors governed support awards, and what evidence she should therefore present." She also asserts that she lacked access to documents that were located in LaFrance's office, and struggled with remote proceedings, including computer access, before she came to the courthouse to appear in person. She contends these conditions were "obviously prejudicial" in and of themselves, but also asserts that with counsel and a continuance she "could have requested-and received-funding for training to enable her self-sufficiency," "could have presented competent evidence about the $400,000 Tom acknowledged he was set to receive after his father's passing," "could have presented evidence challenging the conclusion it was not a long-term marriage for Family Code section 4336 purposes, and objected to the accelerated phasing out of support."
"To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain." (Cal. Rules of Court, rule 3.1332(a).) Continuances of trials are "disfavored" (id., rule 3.1332(c)) and "are granted only on an affirmative showing of good cause requiring a continuance." (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 823.) "Circumstances that may indicate good cause" include the excusable unavailability of a party, witness, or counsel; the need to substitute counsel where doing so is "required in the interests of justice"; and the "excused inability to obtain essential testimony, documents, or other material despite diligent efforts." (Cal. Rules of Court, rule 3.1332(c).) In ruling on a motion for continuance, the court must consider the totality of the circumstances, including the proximity of the trial date, any previous continuances, the length of the continuance requested, "[t]he availability of alternative means to address the problem that gave rise to the motion," the prejudice to other parties, and whether the interests of justice are served by continuing the matter. (Cal. Rules of Court, rule 3.1332(d).) "Reviewing courts must uphold a trial court's choice not to grant a continuance unless the court has abused its discretion in so doing." (In re Marriage of Falcone & Fyke, supra, 164 Cal.App.4th at p. 823.)
Ariza has not demonstrated an abuse of discretion here. LaFrance completed his limited scope representation in April 2021, six months before the long-scheduled trial date. It was not an abuse of discretion for the court to conclude that six months was a reasonable amount of time for Ariza to retrieve her files, whether in person or via electronic or physical delivery. The request for continuance directed at the correct court was made on the eve of trial and requested not the "short continuance" Ariza suggests in her briefing but a lengthy continuance of "at least 75 days," without regard to any prejudice to Thomas. Moreover, Ariza did not specify why she needed that much time to "re-open discovery" or "file and prepare [her] exhibits." The totality of the circumstances supports the denial of the continuance requests.
Ariza asserts that various minor difficulties she encountered while representing herself prejudiced her and rendered the hearing unfair. We are not persuaded. Her failure to unlock her computer or open a file that was sent to her before trial caused no apparent prejudice; the court ordered Thomas's counsel to email the file to her so she was not "disadvantaged by not looking at the document," and she ultimately came to the courthouse to appear in person. The appraisal by Thomas's expert that was admitted because she was unable to articulate a proper legal objection contained calculations based on Ariza's proposed date of separation, which the court ultimately adopted. It is not apparent how one sustained objection to a single leading question of minimal relevance to the contested issues caused any prejudice, and the court directed Ariza to the statutory provision governing support awards so she could testify to the factors the court was required to consider. Minor procedural hiccups occur in virtually every trial, even when both parties are represented by counsel; there is no indication that the court held any of them against Ariza, or that the result would have been different in their absence.
Ariza also speculates that a continuance-and representation by counsel-"could have" resulted in a more favorable spousal support order. Because we conclude below that the support order was proper, we do not reach this argument.
III. Spousal Support Order
Ariza challenges the spousal support order on several grounds. First, she contends the court erroneously excluded testimony by witness Goland that was relevant to the issue. Second, she contends the court erred by finding that the parties' marriage was not of "long duration" under section 4336 and limiting the duration of the support to four years rather than half the marriage. Third, she contends the "most profound error" was that the court set a fixed end date for the spousal support "without regard for Ariza's progress toward self-sufficiency." We consider these arguments in turn.
A. Goland Testimony
During trial, Goland testified that he saw Thomas slap C. and Ariza during a religious event in 2019. After Goland gave that testimony, Ariza asked, "Did anyone speak to him or [C.] after this?" Thomas's counsel objected on grounds of relevance and "outside the scope" of the issues being tried. The court sustained the objection, stating, "We're not addressing any custody issues here." Ariza contends the court erred in sustaining the objection, because domestic violence is relevant to spousal support. She further suggests the error was prejudicial, because the testimony "would have shown Tom's violence was neither a one-time incident nor an accident caused by Ariza," and thus would have caused the court to weigh domestic violence more heavily when determining an appropriate amount of spousal support.
We review evidentiary rulings for abuse of discretion. (Christ v. Schwartz (2016) 2 Cal.App.5th 440, 446-447.) We reverse only where the appellant shows that the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice. (Ibid.)
Ariza is correct that domestic violence between divorcing parties, or that perpetrated by either party against a party's child, is relevant to the determination of spousal support. (§ 4320, subd. (i).) As a general rule, all relevant evidence is admissible. (Evid. Code, § 351.) The problem here is that Ariza appears to argue that the court excluded Goland's testimony regarding the occurrence of the slapping incident. However, close examination of the reporter's transcript shows that testimony was admitted without objection. The court sustained an objection to Ariza's follow-up query as to whether anyone spoke to Thomas or C. after the incident, not to Goland's narrative description of the incident itself. Indeed, Thomas's counsel addressed the incident during cross-examination of Goland. Ariza offers no argument why it was error to exclude Goland's testimony about the aftermath of the incident as irrelevant, and we do not see any basis for so concluding.
Even if the court did exclude the testimony about the incident, Ariza has not demonstrated that doing so resulted in a miscarriage of justice. The court admitted Goland's testimony that he believed Thomas was "the bad guy" in the proceedings. It also expressly considered domestic violence as a circumstance relevant to its spousal support decision, including the DVRO that protected Ariza and C. from Thomas, as well as C.'s "significant emotional issues." In light of this and other evidence, the court ultimately concluded that the totality of the circumstances warranted spousal support. Ariza has not demonstrated that additional testimony about an incident predating the DVRO had any reasonable probability of altering the court's overall analysis such that she would have obtained a more favorable result. (See People v. Brooks (2017) 3 Cal.5th 1, 47-48.)
B. Duration of Marriage and Support
After adopting Ariza's proposed final separation date of February 2020 and calculating back to the parties' marriage date of February 2009, the trial court found that the parties' marriage lasted a total of 11 years. However, the court further found that the parties were separated for approximately two years, between September 2016 and October 2018. It then subtracted those two years from the duration of the marriage, concluding the parties were married for "just under nine years" for purposes of spousal support. The court ordered Thomas to pay "step-down" spousal support through January 1, 2024.
Ariza contends the court erred by concluding that the parties' marriage was under 10 years and therefore not of "long duration" for purposes of retaining indefinite jurisdiction over spousal support. She also argues the court compounded the error by terminating spousal support four years after the date of separation, which is less than one half the length of the marriage. We disagree.
Spousal support is governed by sections 4300 through 4360. Section 4330 authorizes the trial court to order one party to pay spousal support to the other in an amount and for a period of time that is just and reasonable given the parties' circumstances, standard of living, and considerations required by section 4320. (In re Marriage of Maher & Strawn (2021) 63 Cal.App.5th 356, 363.) The statutory factors enumerated in section 4320 include the duration of the parties' marriage; the financial situations of both parties; the marketable skills the supporting party possesses or needs to acquire; the ability of the supporting party to pay spousal support; the age and health of the parties; the ability of the supported party to engage in employment without unduly interfering with the interests of dependent children in that party's custody; documented history of domestic violence between the parties; the balance of hardship to the parties; and any other factors the court deems just and equitable. (See § 4320.)
Particularly relevant here is "[t]he goal that the supported party shall be self-supporting within a reasonable period of time." (§ 4320, subd. (l).) "Except in the case of a marriage of long duration as described in Section 4336, a 'reasonable period of time' for purpose of this section generally shall be one-half the length of the marriage." (Ibid.) The statue further provides, however, that "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." (Ibid.)
Section 4336 provides that a marriage is of "long duration" when it lasts 10 years or more "from the date of marriage to the date of separation." (§ 4336, subd. (b).) It further provides that "the court may consider periods of separation during the marriage in determining whether the marriage is in fact of long duration." (Ibid.) When a marriage is of long duration, "the court retains jurisdiction indefinitely in a proceeding for dissolution of marriage." (Id., subd. (a).) Otherwise, "[a]n order for spousal support terminates at the end of the period provided in the order and shall not be extended unless the court retains jurisdiction in the order or under Section 4336." (§ 4335.) The dates of marriage and separation are questions of fact that are reviewed for substantial evidence. (In re Marriage of Lee &Lin (2019) 41 Cal.App.5th 698, 702.)
In crafting a spousal support order, the court is required to consider the statutory factors in section 4320. (In re Marriage of Maher &Strawn, supra, 63 Cal.App.5th at p. 363.) Once it does so, it has broad discretion to issue a spousal support order that accomplishes substantial justice for the parties. (Ibid.) We deferentially review these orders and only find an abuse of discretion where no trial court reasonably could have made the order. (Ibid.)
The trial court acted well within statutory parameters in determining the duration of the parties' marriage. The parties agreed on the dates of marriage and initial separation. Neither disputed that they were separated for approximately two years before they attempted to reconcile the marriage, and section 4336, subdivision (b) specifically allows the court to consider periods of separation in calculating marriage duration. Ariza acknowledges this statutory provision, but asserts that because the statute uses the permissive "may" rather than the mandatory "shall," "the law does not presume a court should do so." She asserts, without citation to the record, that "such reduction of the marriage seems especially questionable here" because the "only reason for the separation was parties' [sic] compliance with [dependency] orders." This unsupported assertion does not establish any abuse of the court's broad discretion.
We are similarly unpersuaded that the court abused its discretion in ordering spousal support to terminate on January 1, 2024. In its oral ruling, the court expressly and in great detail considered every statutory factor enumerated in section 4320. Those included Ariza's accommodation of Thomas's unusual work schedule during the marriage; her need for career flexibility to avoid unduly interfering with C.'s special education needs; Ariza's marketable bookkeeping skills and possible need to retrain if she wished to work as a paralegal; the parties' ages and health; the parties' financial situations, including Thomas's expected receipt of a sizeable inheritance; the parties' history of domestic violence; and the fact that Thomas paid Ariza's living expenses for "[a]n aggregate period of 34 and a half months" during the parties' separation. Ariza asserts that several of these factors "warranted an upward deviation from the 'half-marriage' guideline." However, "the weight to be given each statutory factor is within the court's broad discretion," and it is not our role to reweigh the highly case-specific factors. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 308.) We consider only whether the trial court properly considered all statutory factors- which it plainly did-and whether its order was so outside the bounds of its discretion that no reasonable court would have made the same order. The court's order was reasonable, and we do not disturb it.
C. Date of Termination
Ariza's final contention relating to spousal support is that the court committed "profound error" by ordering support to terminate on a set date regardless of her circumstances. Quoting In re Marriage of Vomacka (1984) 36 Cal.3d 459, 468, which in turn quotes In re Marriage of Morrison (1978) 20 Cal.3d 437, 453, she contends that orders terminating spousal support on a fixed date are disfavored and must be overturned "unless the record clearly indicates that the supported spouse will be able to adequately meet his or her financial needs at the time selected for termination of jurisdiction." She argues that the record here does not so indicate, and instead shows that the court was "indifferent to the actual challenges Ariza would face" as she "struggled to re-enter the workforce near retirement age-while caring for a special needs child." We disagree.
Step-down spousal support orders "are not per se objectionable." (In re Marriage of West (2007) 152 Cal.App.4th 240, 248; In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 309.) "They must, however, be based on reasonable inferences to be drawn from the evidence, not mere hopes or speculative expectations." (In re Marriage of West, supra, 152 Cal.App.4th at p. 248.) "It need not be shown that the supported spouse certainly will be earning the presumed income," but it must be reasonable to infer that the supported spouse's skills or circumstances will have changed sufficiently to render him or her self-supporting. (Ibid.; see also Hogoboom &King, Cal. Practice Guide: Family Law (The Rutter Group 2023) ¶ 6:1071.) Indeed, "one of the express statutory objectives is 'that the supported party shall be self-supporting within a reasonable period of time.'" (In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 310, quoting § 4320, subd. (k).) As discussed above, we review the spousal support order for abuse of discretion.
Here, evidence in the record showed that Ariza was 55 years old at the time of the dissolution. She had a college degree and work experience as an accountant, bookkeeper, receptionist, paralegal, and real estate manager. She did not work during the marriage but was able to obtain jobs that paid $20 to $25 per hour during the parties' separation. However, she struggled to find jobs that allowed her the flexibility to care for C., and would need to pay rent after she moved out of the marital home. The court also found that Ariza would receive an equalization payment of approximately $100,000 from Thomas, and that she had exclusive use of the parties' marital home during the entirety of the parties' separations "without any financial contribution."
The court recognized that Ariza would need "time to seek full-time employment" and awarded her step-down spousal support for approximately two-and-one-quarter years from the date of dissolution. This was not an abuse of discretion. It is reasonable to infer that, notwithstanding her age, Ariza will be able to support herself in that timeframe, given her education and varied work experience, demonstrated ability to find work during the separation, C.'s increasing age and presumable lessening need for constant supervision, and general increase in the availability of flexible and remote work schedules. This is in contrast to In re Marriage of Morrison, supra, 20 Cal.3d at p. 454, in which there was no evidence that the supported spouse, who had medical problems and "no significant job skills or work history," would be able to provide for herself when the order was terminated. Moreover, contrary to Ariza's assertion, the court explicitly stated that the support order was modifiable while the court retained jurisdiction, i.e, at any time before January 1, 2024. Citing In re Marriage of Carter (1994) 26 Cal.App.4th 1024, 1030, Ariza argues that her right to seek modification may be "illusory" if any motion for modification is not heard by January 1, 2024. That speculative concern does not demonstrate that the court abused its discretion.
IV. DVRO Extension
Ariza's final contentions pertain to the hearing to extend the DVRO. She contends that the court erred by refusing to hear testimony from C. and by denying the extension under an incorrect standard. We disagree.
A. Exclusion of C.'s Testimony
At the hearing to extend the DVRO, Ariza's limited scope counsel, Sklan, informed the court that C. had "expressed her desire, independently of her mother's, to have [the DVRO] be extended on her behalf." He asked the court "how do we get her before the court" to facilitate that. The court stated that C. was an additional protected party, not the petitioner. It further observed that C. had counsel in ongoing dependency proceedings involving the family, and could petition for a DVRO through that counsel. After Ariza confirmed that there were no new incidents involving C., the court stated that it would not be hearing testimony from her. Ariza contends this was error, both because she had a due process right to present evidence and because C. was a percipient witness to some of the events described in Ariza's declaration such that their interests "were intertwined."
As previously discussed, we review evidentiary rulings for abuse of discretion and reverse only if the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice. (Christ v. Schwartz, supra, 2 Cal.App.5th at pp. 446-447.) The court did not abuse its discretion here. The trial court is not required to allow oral testimony at a hearing for a DVRO. (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1499.) "In exercising its discretion to either allow or exclude oral testimony, however, the trial court should be guided by the constitutional principle that '[d]ue process guarantees "'notice and opportunity for hearing appropriate to the nature of the case.'" [Citation.]'" (Id. at p. 1500, emphasis in original.) Here, the nature of the case was an application by Ariza to extend a DVRO for five years. C. was a protected party, but she was not an applicant and was not represented by Ariza's counsel. Due to ongoing dependency proceedings, C. had her own counsel to represent her interests; as the trial court recognized, that counsel could file a request for a DVRO or even a declaration on C.'s behalf. Moreover, the court limited the oral testimony at the outset of the hearing to that concerning incidents post-dating the declarations, and confirmed with Ariza that no additional incidents involving C. had occurred since the declarations were filed. This was a proper exercise of the court's power to "provide for the orderly conduct of proceedings before it." (Code Civ. Proc., § 128, subd. (a)(3).)
Ariza asserts that evidence from C. would have been relevant because the disturbance of C.'s emotional calm could have supported extension of the DVRO. Indeed, "abuse is not limited to the protected party seeking the order." (Perez v. Hernandez-Torrez (2016) 1 Cal.App.5th 389, 400.) "[C]hild abuse, with no abuse of the protected party, can support the issuance of a DVRO." (Ibid., citing Guo v. Xiao (2014) 228 Cal.App.4th 812, 817-818.) Here, however, there was no alleged abuse of C. At worst, Ariza alleged that Thomas violated the DVRO by being present at a restaurant when he knew or should have known C. would also be present. The court also had before it Ariza's and Goland's declarations regarding the restaurant incident; it was not required to admit additional cumulative evidence. (See Evid. Code, § 352; see also People v. Robinson (2020) 47 Cal.App.5th 1027, 1032 ["Trial judges have great discretion to curb the cumulative."].)
B. DVRO Standard
The trial court declined to extend the DVRO. It found that Ariza failed to tie Thomas to the various incidents in the condo garage and also "jumps to conclusion that the court does not as to causation." It further found Thomas's testimony credible, and concluded that Thomas did not violate the DVRO during the restaurant incident. In light of these findings, the court made the following statements: "the court does not find that there is a reasonable probability of future abuse. And the court does not find that there is a sufficient basis to renew the restraining order. The court denies the request for the renewal." Ariza contends this was error, because the court applied an incorrect standard by requiring her to prove a reasonable probability of future abuse rather than reasonable apprehension of future abuse.
"We review an order granting or denying a DVRO for abuse of discretion. [Citation.] In reviewing the trial court's factual findings, we apply the substantial evidence rule. [Citation.] The inquiry is whether substantial evidence supports the court's finding, not whether a contrary finding might have been made. [Citation.] We accept as true all evidence tending to establish the correctness of the trial court's findings and resolve every conflict in favor of the judgment." (M.S. v. A.S. (2022) 76 Cal.App.5th 1139, 1143-1144.) The court's discretion is not boundless. A discretionary order based on incorrect legal assumptions or an application of improper legal criteria is not an informed exercise of discretion and is subject to reversal. (Eneaji v. Ubboe (2014) 229 Cal.App.4th 1457, 1463.) "The question of whether a trial court applied the correct legal standard to an issue in exercising its discretion is a question of law [citation] requiring de novo review." (Ibid.)
"A trial court should renew the protective order if, and only if, it finds by a preponderance of the evidence that the protected party entertains a 'reasonable apprehension' of future abuse." (Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, 1290 (Ritchie).) "[T]his does not mean the court must find it is more likely than not future abuse will occur if the protective order is not renewed. It only means the evidence demonstrates it is more probable than not there is a sufficient risk of future abuse to find the protected party's apprehension is genuine and reasonable." (Ibid.; see also Michael M. v. Robin J. (2023) 92 Cal.App.5th 170, 179 [same].) The abuse at issue need not be physical; the statutory definition of abuse "encompasses 'a multitude of behaviors' that do 'not involve any physical injury or assaultive acts.'" (Michael M. v. Robin J., supra, 92 Cal.App.5th at p. 179.) In evaluating whether the moving party has a reasonable apprehension of future abuse, the trial court should consider the evidence and findings supporting the initial DVRO as well as "'any significant changes in the circumstances surrounding the events justifying the initial protective order. For instance, have the restrained and protected parties moved on with their lives so far that the opportunity and likelihood of future abuse has diminished to the degree they no longer support a renewal of the order?'" (Id. at p. 180, quoting Ritchie, supra, 115 Cal.App.4th at p. 1291.) "'The key consideration for the court is not the type or timing of abuse, but whether the protected party has a reasonable fear of future abuse.'" (Robin J., supra, 92 Cal.App.5th at p. 180 quoting Perez v. Torres-Hernandez, supra, 1 Cal.App.5th at p. 397.)
Reasonable apprehension of future abuse and reasonable probability of future abuse are essentially two sides of the same coin. "It is not enough this party entertain a subjective fear the party to be restrained will commit abusive acts in the future. The 'apprehension' those acts will occur must be 'reasonable.' That is, the court must find the probability of future abuse is sufficient that a reasonable [person] in the same circumstances would have a 'reasonable apprehension' such abuse will occur unless the court issues a protective order." (Ritchie, supra, 115 Cal.App.4th at p. 1288, italics added.) The court here determined that the probability of future abuse was minimal. Therefore, it necessarily concluded that a reasonable person in Ariza's circumstances would not have a reasonable apprehension of future abuse. This was not error; it was a correct application of the correct standard.
Ariza alternatively contends that even if the court applied the correct standard, it abused its discretion by relying too heavily on Thomas's compliance with the extant order. She argues that Cueto v. Dozier (2015) 241 Cal.App.4th 550 (Cueto) is analogous. We disagree.
In Cueto, protected party Cueto sought permanent renewal of her DVRO against Dozier, the father of her minor son. (See Cueto, supra, 241 Cal.App.4th at p. 553.) Cueto obtained the initial DVRO after Dozier assaulted her in public after their son's baseball game, though she also alleged at that time that Dozier had physically abused her on several other occasions. (Id. at pp. 553-554.) In her request to renew the DVRO, Cueto alleged that Dozier had violated the order by driving by her home and playing loud music, which caused her to feel anxious and threatened and experience recurring nightmares. (Id. at p. 555.) Dozier denied driving by Cueto's home; his girlfriend submitted a declaration that the white car Cueto had seen belonged to her and did not have a stereo. (Id. at p. 556.)
At the hearing, Cueto testified that she saw a white Lexus drive by her house but did not see the driver. The court observed that there were "a lot of white Lexus's [sic] out in the world," to which Cueto's counsel responded that it was not necessary for the court to find that Dozier was the driver or otherwise violated the order. (Cueto, supra, 241 Cal.App.4th at p. 556.) Dozier denied any abuse. (Id. at pp. 557-558.) The court ultimately denied Cueto's request to renew the DVRO. It issued a statement of decision explaining that the denial was "'for the following reasons: (1) no testimony could be provided to the court that respondent was the person who drove by petitioner's home twice in the last two years in a white Lexus, (2) no testimony was provided to the court of any violations of the restraining order, (3) petitioner did not show a reasonable apprehension of fear, for physical or mental abuse, (4) [b]ased on the testimony and documents presented, and the facts showed that at two times within the last two years a white Lexus vehicle drove down petitioner's street, never being able to identify respondent as the person involved, the Court rules there is insufficient evidence at this time to renew the restraining order.'" (Id. at p. 558.)
The appellate court rejected Cueto's contention that the trial court applied the incorrect legal standard. (See Cueto, supra, 241 Cal.App.4th at pp. 559-562.) However, it concluded the trial court abused its discretion by finding that Cueto failed to demonstrate a reasonable apprehension of future abuse. (Id. at p. 562.) The appellate court observed that the "trial court relied largely on the lack of violation of the restraining order," and concluded that was error because the efficacy of the initial restraining order was itself a good reason to renew it. (Ibid.) It pointed to the "violent incident" that prompted the initial order, the "troubling history of physical abuse," and the absence of evidence suggesting Dozier had moved on with his life such that the opportunity for and likelihood of future abuse had diminished. (Ibid.) It also noted that Dozier had failed to attend court-ordered anger management classes to maintain visitation with his son. (Ibid.)
Cueto is distinguishable. The record in the instant case is replete with evidence suggesting that Thomas and Ariza had moved on with their lives during the lengthy pendency of the dissolution proceedings. They no longer lived together, and Thomas voluntarily completed anger management classes and a domestic violence program. Although the court found that Ariza failed to connect Thomas to the alleged incidents in the condo garage, just as Cueto failed to connect Dozier to the Lexus, that was not the sole or even primary basis for the denial. The trial court also cited the "very close" nature of the original incident underlying the DVRO, Ariza's role in that incident, and its finding that Thomas was credible. Ariza suggests the court erred in crediting Thomas, because "very few other people (if any) had access" to the condo garage, breaking and entering is a crime, and Thomas's alibi involving a religious holiday did not constitute competent evidence of the parties' religious norms. We do not reweigh these credibility determinations, which were supported by substantial evidence.
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs of appeal.
We concur: CURREY, P.J. GRIMES, J. [*]
[*] Justice of the Court of Appeal, Second Appellate District, Division Eight, assigned to Division Four, by the Chief Justice pursuant to article VI, section 6 of the California Constitution.