BILL ANALYSIS                                                                                                                                                                                                    






                             SENATE JUDICIARY COMMITTEE
                           Senator Ellen M. Corbett, Chair
                              2009-2010 Regular Session


          SB 1482 (Wright)
          As Amended August 2, 2010
          Hearing Date: August 12, 2010
          Fiscal: No
          Urgency: No
          KB:jd
                    
                            PURSUANT TO SENATE RULE 29.10
          
                                       SUBJECT
                                           
               Spousal Support: Modification: Change of Circumstances

                                      DESCRIPTION  

          This bill, sponsored by the Family Law Section of the State Bar,  
          would extend the sunset date by three years on provisions  
          regarding change of circumstances that may be the basis for a  
          request for modification of spousal support.  

                                      BACKGROUND  

          Under current law, child support obligations are calculated  
          utilizing mandatory statewide guidelines.  (Fam. Code Sec.  
          4055.)   Spousal support, on the other hand, is calculated  
          utilizing the factors enumerated in Family Code Section 4320.   
          Among the factors considered are the ability of the supporting  
          party to pay spousal support and the obligations and assets of  
          each party.  (Fam. Code Sec. 4320(c) & (f).)

          Assuming continuing spousal support jurisdiction, a spousal  
          support modification may be granted only if the party seeking  
          the modification shows a material change of circumstances since  
          the most recent order.  (In re Marriage of Tydlaska (2003) 114  
          Cal.App.4th 572, 575; In re Marriage of Bower (2002) 96  
          Cal.App.4th 893, 899.)  

          Prior to 2008, the termination of the child support order by  
          operation of law did not automatically allow the party who had  
          received the child support to go back to court to seek either  
          new spousal support (In re Marriage of Lautsbaugh (1999) 72  
                                                                (more)



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          Cal.App.4th 1131).  However, in 2007 the Legislature enacted SB  
          415 (Harman, Chapter 247, Statutes of 2007), which provided that  
          in a proceeding in which a spousal support order exists and a  
          companion child support order is in effect, the termination of  
          child support by operation of law shall constitute a change of  
          circumstances that may be the basis for a request for  
          modification of spousal support.  SB 415 contained a sunset of  
          three years to allow the Legislature sufficient time to evaluate  
          the impact of the legislation.  This bill seeks to extend the  
          sunset for an additional three years.  

                                CHANGES TO EXISTING LAW
           
           Existing law authorizes the court, in a judgment of dissolution  
          of marriage or legal separation, to order one party to pay  
          spousal support to the other party in an amount and for a  
          duration that the court deems just and reasonable based on the  
          standard of living established during the marriage.  (Fam. Code  
          Sec. 4330.)

           Existing law  imposes on parents a duty to support an unmarried  
          child who has not attained the age of 18 years.  For a child who  
          has attained the age of 18 years, but is still a full-time high  
          school student and is not self-supporting, the duty of support  
          is extended until the time the child completes the 12th grade or  
          attains the age of 19 years, whichever occurs first.  (Fam. Code  
          Sec. 3901.)

           Existing law  provides, commencing in 2008 until January 1, 2011,  
          that in a proceeding in which a spousal support order exists or  
          in which the court has retained jurisdiction over a spousal  
          support order, if a companion child support order is in effect,  
          the termination of child support shall constitute a change of  
          circumstances that may be the basis for a request for  
          modification of spousal support.  (Fam. Code Sec. 4326.)

           Existing law  provides that in a proceeding for dissolution of  
          marriage or for legal separation, the court may order a party to  
          submit to an examination by a vocational training counselor upon  
          a noticed motion, for good cause, by one of the parties.  (Fam.  
          Code Sec. 4331(a).)

           This bill  would, until January 1, 2014, provide that in a  
          proceeding in which a spousal support order exists or in which  
          the court has retained jurisdiction over a spousal support  
          order, if a companion child support order is in effect, the  
                                                                      



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          termination of child support shall constitute a change of  
          circumstances that may be the basis for a request for  
          modification of spousal support.

           This bill  would provide that a motion to modify spousal support  
          based on the change of circumstances described above be filed  
          within six months of the termination of the child support order.

           This bill  would authorize either party to request the  
          appointment of a vocational training counselor if a motion to  
          modify spousal support on that basis is filed.

           This bill  would provide that the termination of a child support  
          order would not constitute a change of circumstances in cases  
          that have resolved pursuant to a stipulated marital settlement  
          agreement where one of the following is true: (1) the agreement  
          or judgment contains a provision regarding what is to occur when  
          the child support order terminates; or (2) the agreement or  
          judgment  provides that the spousal support order is  
          nonmodifiable, spousal support has been waived, and the court's  
          jurisdiction over spousal support has been terminated.

                                        COMMENT
           
              1.   Stated need for the bill

           The author states:

            Since child support is calculated prior to spousal support,  
            the amount of spousal support ordered when a child support  
            order is also in effect is usually significantly lower than it  
            would be "but for" the child support.  Thus, when a child  
            graduates from high school and there is no longer a child  
            support order, the amount of spousal support may be  
            insufficient to meet the supported spouse's needs.  [Family  
            Code] Section 4326 considers a child graduating from high  
            school a change of circumstances, so a party may seek a  
            modification of spousal support when the child support order  
            is no longer in effect.  If [Section] 4326 is not extended, a  
            termination of child support will no longer constitute a  
            change of circumstances and a modification of spousal support  
            on these grounds may not be permitted.
           
             2.   Bill would extend sunset for three years with a few  
               modifications
           
                                                                      



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                   a)        Motions must be filed in six-month time frame 

             In In Marriage of Kacik (2009) 179 Cal.App.4th 410, the Court  
            of Appeal of California, Fourth Appellate District, determined  
            that a party's request for modification of spousal support  
            under Family Code Section 4326 was untimely because it was  
            made long after the termination of the child support order.   
            Although Section 4326 does not contain a filing deadline, the  
            court construed the statute to require reasonable  
            contemporaneousness between the modification and the  
            discontinuation of child support.  However, in its opinion,  
            the court specifically requested that the Legislature, should  
            it decide to extend the sunset, specify a timeframe during  
            which a spousal support modification request based on the  
            termination of child support may be filed.   

            Accordingly, this bill would require that the motion to modify  
            a spousal support order be filed within six months of the  
            termination of the companion child support order.  This  
            timeframe provides a reasonable amount of time for a party to  
            file the motion, and would remove ambiguity from the current  
            statute.

                   b)        Parties may request appointment of vocational  
                    training counselor

             Under current law, in a proceeding for dissolution of marriage  
            or for legal separation, the court may order a party to submit  
            to an examination by a vocational training counselor upon a  
            noticed motion, for good cause, by one of the parties.  (Fam.  
            Code Sec. 4331(a).)  This bill, consistent with current law,  
            would also permit either party to request the appointment of a  
            vocational training counselor when a motion is filed for  
            modification of the spousal support order based on the  
            termination of child support.  

            c)  Bill would not apply to cases that have resolved due to  
               marital settlement agreements  

            This bill would provide that its provisions shall not apply to  
            cases that have resolved as a result of a marital settlement  
            agreement or judgment which (1) contains a provision regarding  
            what is to occur when the child support terminates; or (2)  
            provides that the spousal support order is nonmodifiable, or  
            spousal support has been waived and that the court's  
            jurisdiction over spousal support has been terminated.  These  
                                                                      



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            provisions are intended to ensure that settlements of disputes  
            at the time of marital dissolution are not discouraged.


           Support  :  None Known

           Opposition  :  None Known

                                        HISTORY
           
           Source  :  Family Law Section of the State Bar

           Related Pending Legislation  :  None Known

           Prior Legislation  :  See Background.

           Prior Vote  :

          Assembly Judiciary Committee (Ayes 10, Noes 0)
          Assembly Floor (Ayes 71, Noes 0)

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