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Court of Appeal:
Near-Tripling of Stipulated Support Payments Was Justified
Although Ex-Wife, an Attorney, Won’t Seek to Become Self-Sufficient by Practicing Law, Her Earning Capacity Would Not Be Sufficient to Restore Her to Pre-Divorce Standard of Living, Justices Say, and Note Ex-Husband’s Boosted Income
By a MetNews Staff Writer
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KEITH MORE attorney |
Div. Three of the Fourth District Court of Appeal has affirmed an order hiking monthly spousal support that are due from a Newport Beach attorney to his ex-wife, a non-practicing active member of the State Bar, from $19,000—the amount recited in a 2017 handwritten stipulation, converted into a 2018 judgment—to $52,000.
The unpublished opinion was filed Thursday.
Orange Superior Court Judge Lee L. Gabriel reckoned that $62,000 a month would be needed for the ex-wife, Robin More, to enjoy the standard of living she had while married, but whacked off $10,000 under the authority of the 1988 Court of Appeal opinion by this district’s Div. Five in In re Marriage of Gavron. That decision sets forth that “it is in the best interests of both spouses and of society in general that the supported spouse become self-sufficient.”
The Gavron court, in an opinion by then-Justice Roger Boren (later presiding justice of Div. Two and now retired), reversed an order that terminated spousal support based on an ex-wife’s failure to obtain employment or occupational training, holding that there had not been a showing of changed circumstances.
However, Boren said that “the supported spouse’s failure to at least make good-faith efforts to become self-sufficient can constitute a change in circumstances which could warrant which could warrant a modification” where the judge has provided an admonishment, absent in the case at hand, as to an expectation of that party seeking to become self-supporting.
Such an advisement—now routine, and one which Robin More received—has become known as a “Gavron warning.”
Appellant’s Argument
Ex-husband Keith More, of the firm of Bentley & More, LLP, argued on appeal that under Gavron, “[m]odification of a long-term spousal support order may be granted only where there has been a material change of circumstances since the last order” and, he insisted, there hasn’t been one (except for the termination of child support when a daughter attained adulthood). He stressed that his former spouse, on active State Bar status, has not reentered the job market as a lawyer.
Married in 1989, the Mores separated in 2014 and were divorced in 2016. The wife had ceased practicing law to bring up their three children.
In a brief on appeal by Santa Ana attorneys Marjorie G. Fuller and Lisa R. McCall (who have separate practices), Keith More said:
“In the ten years since separation, Robin, a licensed attorney, had only recently obtained part-time employment as manager of a pickleball court at $19 per hour….She made no attempt at any employment from date of separation until 2022.”
Question Posed
Keith More commented in the brief:
“This may be the point at which to inquire why, when there are two equally educated, employed, healthy, qualified spouses at the conclusion of a marriage, it becomes the legal responsibility of one of them to support the other who, able to achieve self-support, chooses not to continue working.
“The More marriage was a marriage of equals: husband and wife with equal backgrounds, graduates of the same law school, both with substantial legal work experience during marriage, both in good health and without child care requirements at the end of their marriage—should either be entitled to a life of leisure, with a lifetime court-ordered endowment from the other? The answer is ‘No,’ and the statutes, cases, and public policy all support that conclusion.”
Both attended the DePaul University College of Law in Chicago.
The ex-husband protested that he “has paid for Robin’s unwillingness to consider suitable employment since 2014,” explaining:
“Robin earned over $233,000 per year working part-time at the conclusion of the marriage in 2014….[H]ad she continued employment, like Keith, she may well have been in the same economic position as he. However, she testified, she did not want a stressful, hard job, and therefore, she admitted, did not attempt to find suitable employment.”
Moore’s Opinion
In her opinion affirming the order modifying the support provision, Acting Presiding Justice Eileen C. Moore rejected Keith More’s assertion that meaningful changed circumstances haven’t occurred. A major alteration, she said, is that the ex-husband, owing to the success of his firm, can now afford to pay a sum he couldn’t at the time the settlement agreement was entered into.
Moore pointed out that Robin More “needed $70,000 to $75,000 in pretax income to maintain the marital standard of living” but agreed to a lesser sum in light of her husband’s diminished income at the time. But, the justice said, his earnings “rose dramatically after 2017,” with him averaging $866,488 per month as of 2018.
She declared: “Given Keith’s increased income and the failure of the initial support order to meet Robin’s needs, the court could modify spousal support to an amount that would permit Robin to live at the marital standard.”
Earning Ability
Moore opined that “keeping Robin’s spousal support at $19,000 per month would be inequitable,” citing expert testimony that if she returned to law practice, her monthly earning capacity would be $11,583.That sum, she said, when added to the $19,000 and Robin More’s $9,486 annuity income would “result in $40,069 in monthly income” which would be “least $29,931 per month short” of what “she needed to maintain the marital standard of living.”
Keith Moore contended that his ex-wife’s failure to seek reemployment as a lawyer should result, if anything, in a reduction of spousal support, saying:
“When spousal support is modified initially from $19,000 per month to $62,000 per month, that is an increase, not a decrease, by any definition. A later reduction of the enormously increased amount does not constitute a reduction in the original order: even Robin, in her brief, does not attempt to claim that $62,000 or $52,000 is less than $19,000, and that it constitutes a reduction in support resultant from Robin’s failure to comply with the Gavron warning.”
There was no abuse of discretion by Gabriel in boosting the support obligation, Moore said, explaining that even if Robin More had reentered law practice, it would not have brought her up to her accustomed living standard, declaring:
“Due to the marriage’s length and the wide gap between Robin’s potential income and her needs, it was not unreasonable for the court to increase spousal support but impute $10,000 of monthly income to Robin to address the Gavron issue.”
The case is Marriage of More, G063945.
Representing Robin More on appeal was San Luis Obispo attorney Stephen Temko.
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