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) SB 1482 (Wright) Page 2 of ? 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 SB 1482 (Wright) Page 3 of ? 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 SB 1482 (Wright) Page 4 of ? 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 SB 1482 (Wright) Page 5 of ? 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) **************