Filed 4/13/16 Marriage of Cosby CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re the Marriage of DONNA and BRUCE 

COSBY.

DONNA COSBY,

Appellant,

v.

BRUCE COSBY,

Respondent.

 D067043

 (Super. Ct. No. DN155829)

APPEAL from an order of the Superior Court of San Diego County, 

Patti C. Ratekin, Commissioner. Affirmed.

Tritt & Tritt and James F. Tritt for Appellant.

Law Offices of Sondra S. Sutherland and Sondra S. Sutherland for Respondent.
2

I.

INTRODUCTION

Donna Cosby appeals an order of the trial court reducing the amount of spousal 

support paid to her by her ex-husband, Bruce Cosby, to zero. Bruce1 requested 

termination and/or modification of the $4,000 per month in spousal support to which the 

parties had stipulated approximately five years earlier after he learned that Donna had 

participated in a "commitment ceremony" with another man and was living with that 

man.

Donna asserts three grounds for reversal of the trial court's order. She first 

contends that Bruce "did not proffer, nor did the trial court find, a material change of 

circumstances to justify the modification order." (Formatting omitted.) Donna next 

claims that the order should be reversed because "the trial judge did not comply with the 

statutory requirement of considering, weighing, and applying all of the factors set forth in 

Family Code section 4320." (Formatting omitted.) Finally, Donna argues that the order 

should be reversed "on the ground that it leaves the partie[s] at significantly different 

standards of living and therefore constituted an abuse of discretion . . . ." (Formatting 

omitted.)

We conclude that Donna has not demonstrated that the trial court abused its 

discretion in reducing Bruce's spousal support obligation to zero. We therefore affirm the 

court's order.

 

1 We will use the first names of individuals referred to in this opinion, for clarity.
3

II.

FACTUAL AND PROCEDURAL BACKGROUND

Bruce and Donna married on August 15, 1983 and separated on March 26, 2009, 

for a marriage of 25 years, seven months duration. The couple have a daughter who was 

25 years old at the time the parties divorced.

Donna initiated the action for legal separation in May 2009. Bruce eventually 

requested dissolution of the marriage. In February 2010, the parties reached a stipulated 

agreement regarding spousal support. Pursuant to the agreement, Bruce was to pay 

Donna $4,000 per month in interim spousal support, to commence as of February 1, 

2010. This amount was based on Bruce receiving $9,865 per month in income, $3,063 in 

military retirement income (of which Donna was entitled to a community share), and 

Donna having $600 in income per month.

The parties entered into a final stipulated judgment in early May 2010 in which 

they disposed of their assets and debts. The stipulated judgment required Bruce to pay 

Donna $4,000 per month in spousal support, plus an additional $1,000 per month for 20 

months. According to the stipulated judgment, the parties agreed that the $4,000 per 

month would meet Donna's reasonable needs, pursuant to the "middle class standard of 

living established during the marriage." The stipulated judgment also provided that 

Bruce would pay Donna her portion of the military retirement income until she was able 

to arrange to receive it directly.

Pursuant to the stipulated judgment, Bruce's spousal support obligation would 

"cease to be due on the earliest of the death of Respondent, the death of Petitioner, the 
4

remarriage of Petitioner, Petitioner's entry into a registered domestic partnership under 

California law, or the equivalent under the laws of any other jurisdiction, or further Court 

order." The original typewritten version of the stipulated judgment included "the 

cohabitation by Petitioner with another adult unrelated person" as another event that 

would terminate the spousal support obligation, but these words were lined out of the 

signed agreement.

The stipulated judgment also included a so-called Gavron2 warning, as follows:

"It is the goal of the State of California that each Party shall make 

reasonable good faith efforts to become self-supporting as provided 

for in section 4320 of the Family Code. The failure to make 

reasonable good faith efforts may be one of the factors considered by 

the Court as a basis for modifying or terminating support. The Court 

finds that Petitioner has been advised that she has a duty to 

contribute to her own support, to work to eventually become selfsupporting, and to manage her estate and financial affairs reasonably 

and in a manner that protects its value, produces a reasonable return 

in the form of income or capital gain, and utilizes assets in a manner 

to reduce the need for support, and that failure to do any of these

things may be considered by the Court in setting support in the 

future."

The parties stipulated that in setting the spousal support award at $4,000 per 

month, "the parties have considered each of the factors set forth in section 4320 of the 

Family Code, including Petitioner's ability to reside rent free with utilities paid by 

Respondent from the date of separation until a formal spousal support order by 

stipulation of the parties took effect February 1, 2010, Respondent's payment and 

assumption of debts existing at the date of separation, Respondent's agreement to take on 

 

2 In re Marriage of Gavron (1988) 203 Cal.App.3d 705, 712 (Gavron).
5

the entire liabilities of the former family residence which has a net negative equity in a 

depressed housing market, which resulted in an offset to Respondent's rental income 

received on his separate property estate for purposes of determining spousal support at 

this time. No rental income of Respondent or free living expenses of respondent due to 

his significant separate property estate were considered in the determination of spousal 

support due to Husband's servicing obligations associated with the Woodhaven property." 

(Italics added.)

On July 31, 2014, Bruce filed a request for an order (RFO) to modify Donna's 

spousal support award. In his RFO, Bruce sought multiple alternative forms of relief. 

Specifically, he sought either (1) the termination of the existing spousal support order and 

termination of the court's jurisdiction; (2) a reduction in the amount of support to $0.00; 

or (3) if spousal support was not reduced to $0.00, the imposition of a vocational 

evaluation, job contacts order, and the disclosure of Donna's efforts to become selfsupporting. In his supporting declaration, Bruce asserted the following:

"Donna married Todd Catlin on August 25, 2013, although she is 

trying to avoid the legal consequences by calling it a 'commitment 

ceremony'. As described more fully below, their ceremony was 

complete with announcements, a wedding shower, wedding cake, 

wedding ceremony at a Lutheran church, wedding photographs, 

wedding rings, a wedding reception, and a change of relationship 

status on Donna's Facebook page to 'married'."

Bruce also declared that as of July 25, 2013, Donna had informed him that she had 

moved into a home in Oceanside, California. The address was that of a home owned by 

Todd Catlin. In October 2013, Donna notified Bruce that she had moved into a home in 

Anaheim Hills, California. A year later, Donna notified Bruce that she had moved to an 
6

address in Anaheim, California. Bruce believed that Donna was covered by Todd's 

health insurance through his employment.

Bruce also addressed each of the factors set forth in Family Code section 4320 in 

his Declaration.

In response to Bruce's request to modify spousal support, Donna submitted her 

own declaration, as well as the declaration of Todd Catlin. Todd acknowledged in his 

declaration that he and Donna are "in a committed relationship" and that they "live 

together." Todd stated that he does "not provide financial support for Donna," but also 

stated that "we are able to live in [a] middle class suburban residence because we split the 

rent." Todd declared that he "take[s] home about $2,725.20 per month," after taxes. He 

pays half the rent on the shared home, and the rent together with his other expenses totals 

$2,500.00 per month. That amount also includes $245 in utilities.

Donna acknowledged that she lives with Todd. Donna's declaration addressed two 

issues, as evidenced by the two main subheadings in the document: (1) "My 

Cohabitation with Todd has Not Increased my Ability to Support Myself, and has Not 

Improved my Standard of Living;" and (2) "I Have a Limited Earning Capacity." 

Donna's Income and Expense Declaration stated that she had worked in November and 

December 2013, for 20 hours per week, with pay of $8.05 per hour. Donna earned a total 

of $837.06 in 2013 according to her W-2 statement. Donna listed her assets in cash, 

checking accounts, savings accounts, money market or other deposit accounts as totaling 

$19,000. Donna listed $0.00 as her expenses for utilities. She asserted that her total 

expenses per month were $5,662.98, of which $1747.50 were "expenses paid by others." 
7

In her declaration, Donna stated that she had "$50" in monthly "medical" expenses, but in 

her Income and Expense Declaration, Donna stated that she had $490.00 per month in 

"Health-care costs not paid by insurance." Donna's income included the $4,000 in 

spousal support from Bruce, as well as her share of Bruce's military retirement benefit, 

which was $1,276.86 per month.

The trial court heard from the parties and the parties' attorneys on the matter of 

Bruce's request for modification of spousal support on September 23, 2014. The trial 

court ultimately declined to terminate spousal support entirely, but did reduce the amount 

of support to zero. Toward the end of the hearing, the court asked the attorneys, "I 

assume the 4320s are in the judgment?" Bruce's attorney responded in the affirmative. 

Donna's attorney said nothing. The court then stated, "So we'll incorporate the prior 

4320s and make those [the] 4320s [with respect to this order]."

The court's "Findings and Order After Hearing" was filed on October 10, 2014. 

That document includes the following statements regarding the court's findings:

"a. The Court finds that Petitioner has had more than five (5) years 

since the parties['] separation on May 12, 2009 to become selfsupporting, but has made no effort to obtain additional skills. She 

has only been working part-time and receiving her share of 

Respondent's U.S. Navy retirement pay. In the time since the 

Gavron warning until now, Respondent hasn't done what the Court 

would expect.

"b. The Court also finds it would be inequitable to continue the 

support when Respondent has clearly moved on with her life and is 

in a real committed relationship with someone else, holding herself 

out to be married and as having gone through a wedding on 

Facebook."
8

The order also "adopts and incorporates herein the Fam. Code § 4320 findings 

from the parties' stipulated Judgment, filed May 3, 2010."

Donna filed a timely notice of appeal.

III.

DISCUSSION

A. Legal Standards

"Modification of spousal support, even if the prior amount is established by 

agreement, requires a material change of circumstances since the last order. [Citations.] 

Change of circumstances means a reduction or increase in the supporting spouse's ability 

to pay and/or an increase or decrease in the supported spouse's needs. [Citations.] It 

includes all factors affecting need and the ability to pay." (In re Marriage of McCann

(1996) 41 Cal.App.4th 978, 982 (McCann).) "A trial court considering whether to 

modify a spousal support order considers the same criteria set forth in Family Code 

section 4320 as it considered in making the initial order." (In re Marriage of West (2007) 

152 Cal.App.4th 240, 247.)

Family Code section 4320 provides:

"In ordering spousal support under this part, the court shall consider 

all of the following circumstances:

"(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 all of the following:

"(1) The marketable skills of the supported party; the job market for 

those skills; the time and expenses required for the supported party 

to acquire the appropriate education or training to develop those 
9

skills; and the possible need for retraining or education to acquire 

other, more marketable skills or employment.

"(2) The extent to which the supported party's present or future 

earning capacity is impaired by periods of unemployment that were 

incurred during the marriage to permit the supported party to devote 

time to domestic duties.

"(b) The extent to which the supported party contributed to the 

attainment of an education, training, a career position, or a license 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, including a plea of nolo contendere, of 

any history of domestic violence, as defined in Section 6211, 

between the parties or perpetrated by either party against either 

party's child, including, but not limited to, consideration of 

emotional distress resulting from domestic violence perpetrated 

against the supported party by the supporting party, and 

consideration of any history of violence against the supporting party 

by the supported party.

"(j) The immediate and specific tax consequences to each party.

"(k) The balance of the hardships to each party.
10

"(l) The goal that the supported party shall be self-supporting within 

a reasonable period of time. Except in the case of a marriage of long 

duration as described in Section 4336, a 'reasonable period of time'

for purposes of this section generally shall be one-half the length of 

the marriage. However, 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.

"(m) The criminal conviction of an abusive spouse shall be 

considered in making a reduction or elimination of a spousal support 

award in accordance with Section 4324.5 or 4325.

"(n) Any other factors the court determines are just and equitable."

"Appellate review of orders modifying spousal support is governed by an abuse of 

discretion standard, and such an abuse occurs when a court modifies a support order 

without substantial evidence of a material change of circumstances." (McCann, supra, 41 

Cal.App.4th at pp. 982-983.) " 'So long as the court exercised its discretion along legal 

lines, its decision will not be reversed on appeal if there is substantial evidence to support 

it.' " (In re Marriage of Biderman (1992) 5 Cal.App.4th 409, 412.) "We ' "must accept 

as true all evidence tending to establish the correctness of the trial judge's findings, 

resolving all conflicts in the evidence in favor of the prevailing party and indulging in all 

legitimate and reasonable inferences to uphold the judgment." ' " (In re Marriage of 

Bower (2002) 96 Cal.App.4th 893, 899.)

B. Bruce identified, and the trial court found and relied on, a material change of 

circumstances justifying a modification of spousal support

Donna contends that Bruce "did not proffer, nor did the trial court find, a material 

change of circumstances to justify the modification order." (Formatting omitted.) 

Donna's argument in this regard consists of two contentions. First, she contends that 
11

Bruce did not properly identify either Donna's cohabitation with Todd or her failure to 

become self-supporting as the bases for his request for modification of the spousal 

support order, and therefore, did not provide her with sufficient notice of the changed 

circumstances on which the trial court ultimately relied. Donna's second argument is that 

the trial court did not actually find the existence of a material change of circumstances 

sufficient to justify the court's modification of spousal support to zero.

With respect to Donna's first argument, Donna asserts that "the only purported 

change in circumstances pled by Husband was the [incorrect] allegation that Wife had 

remarried." (Bracketing retained from original.) Donna relies on California Rules of 

Court, rule 5.92(a)(4), which requires a party to "set forth facts sufficient to notify the 

other party of the declarant's contentions in support of the relief requested," to argue that 

Bruce failed to proffer a changed circumstance that sufficiently notified her of his 

contentions in support of the relief he was requesting. She further contends that she was 

"only given Due Process notice of Husband's contention that there was a changed 

circumstance based upon the Wife's remarriage," and that "[c]onsequently, Wife was only 

required to respond to that particular contention." According to Donna, Bruce did not 

"plead cohabitation as a changed circumstance, nor did Husband plead Wife's failure to 

earn or attempt to earn sufficient income to be self supporting."

The record does not support Donna's assertions in this regard. The papers 

submitted with Bruce's RFO demonstrate that Donna was provided with adequate notice 

that Bruce was contending that Donna's cohabitation with Todd and the passage of many 

years' time without Donna demonstrating an attempt to become self-sufficient, justified a 
12

modification of his spousal support obligation. For example, in the Judicial Council form 

portion of the RFO, Bruce requested multiple alternative forms of relief, including 

termination of the spousal support order, modification of the order, or, if neither of those

requests were granted, an order for evaluations and disclosure of efforts to obtain 

employment.3 Based solely on the relief Bruce requested, it is apparent that he was not 

relying on his assertion that Donna had "married" as the sole basis for the RFO; if the 

only basis for the RFO was that Donna had entered into a marriage, then Bruce would 

have necessarily been entitled to a termination of his spousal support obligation under the 

parties' stipulated judgment, and there would have been no need for him to request 

alternative relief.

In addition, Bruce's attached declaration clarified that Bruce understood that 

Donna was not officially married, but was contending that her relationship and 

cohabitation with Todd had changed her circumstances sufficiently to demonstrate that 

her need for support had decreased. For example, Bruce acknowledged that Donna had 

"avoid[ed] the legal consequences [of being married] by calling it a 'commitment 

ceremony'." Although Bruce was suggesting that Donna should be considered to be 

"married" to another man for purposes of his spousal support obligation, it is clear that 

Bruce placed her on notice that her relationship with Todd, and the benefits that may 

have inured to her as a result of her cohabitation with another individual with whom she 

 

3 Bruce also asked for a valuation and division of an omitted retirement asset in 

Donna's name. The trial court addressed that issue and Donna has not raised any 

argument on appeal about the trial court's handling of that matter.
13

was involved in a committed romantic relationship, would be at issue in the hearing on 

Bruce's request to modify the spousal support order. In addition, Bruce provided 

information about Donna's "new mate" (formatting omitted), including his belief that 

Donna was "now covered by Todd Catlin's health insurance through [Todd's] 

employment with the Disneyland Resort." Bruce further asserted that "Donna's standard 

of living has improved post-divorce," and listed Donna's history of cohabitation with 

Todd at multiple addresses, including in homes in Oceanside, Anaheim Hills, and 

Anaheim, California.

Beyond Bruce raising the issue of Donna's reduced need for spousal support based 

on her relationship and cohabitation with Todd, Bruce also raised the contention that 

Donna had "disregarded [the Gavron] admonition," and had "ma[de] no effort to become 

self-supporting, except for some seasonal work at Kohl[']s."4 Bruce also provided 

information regarding Donna's ability to become self-sufficient, based on her educational 

background and her work and volunteer history.

Further evidence that Donna was on notice that Bruce was requesting a 

modification of spousal support based on Donna's cohabitation and her alleged failure to 

 

4 Bruce also alleged that because Donna had lived in San Diego continuously for 14 

years after they moved to San Diego as a result of his military career, she could no longer 

rely on Bruce's military career as justification for her "failure to hold down steady 

employment." Rather, he alleged, she "simply chooses not to work – and doesn't have to 

because she has a new spouse." Although Bruce may have been technically incorrect in 

referring to Todd as Donna's "new spouse," his reference demonstrated that he believed 

that Donna's need for support had decreased as a result of her committed relationship and 

cohabitation with Todd.
14

make reasonable efforts to become self-supporting comes from Donna's declaration, in 

which she specifically addressed these two issues.

In sum, a review of Bruce's RFO establishes that he was relying not only on his 

contention that Donna's "commitment ceremony" with Todd should cause the court to 

treat her relationship as if it were a marriage, but also on the broader contention that 

Donna's living situation had significantly changed because she was now cohabitating 

with, and had the financial support of, a new romantic partner. Bruce also placed Donna 

on notice that he was contending that Donna had made no effort to become selfsupporting in the time between the entry of the spousal support order and the time of the 

hearing.

With respect to Donna's contention that the trial court made no finding of a 

specific change of circumstances sufficient to support the trial court's modification, this 

argument also provides no basis for reversal of the trial court's order.

Although the court may not have pronounced its findings in the clearest of terms, 

it is apparent that the court found that at least two material changes in circumstance had 

occurred by the time of the hearing on Bruce's request to modify spousal support: 

(1) Donna was cohabitating with a new partner with whom she had engaged in a 

"commitment ceremony," and (2) in the five-year period since entry of the spousal 

support order, Donna had not made an attempt to become self-supporting.5 The record 

 

5 The court stated with respect to the first circumstance: "The Court . . . finds it 

would [be] inequitable to continue the support when Respondent has clearly moved on 

with her life and is in a real committed relationship with someone else, holding herself 
15

supports the trial court's findings, and these changes in circumstance are sufficient to 

support the trial court's decision to modify the spousal support award.

First, in finding that Donna was "holding herself out to be married" and was in a 

"real committed relationship with someone else," the trial court was referring to the fact 

that Donna's circumstances had changed with respect to her need for support. Family 

Code section 4323, subdivision (a)(1) states that "there is a rebuttable presumption, 

affecting the burden of proof, of decreased need for spousal support if the supported party 

is cohabitating with a nonmarital partner." " 'Cohabitation may reduce the need for 

spousal support because "sharing a household gives rise to economies of scale. 

[Citation.] Also, more importantly, the cohabitant's income may be available to the 

obligee spouse." ' " (In re Marriage of Geraci (2006) 144 Cal.App.4th 1278, 1298, 

footnotes omitted.) " '[T]he Legislature created the presumption . . . on thinking that 

cohabitation . . . creates a change of circumstance so tied in with the payment of spousal 

support as to be significant enough by itself to require a re-examination of whether such 

need for support continues in such a way that it still should be charged to the prior 

spouse.' " (Id. at pp. 1298-1299, fn. omitted.)

There is clearly substantial evidence that Donna was, as of the time of Bruce's 

motion, cohabitating with Todd. In fact, there was evidence, in Donna's Income and 

 

out to be married and as having gone through a wedding on Facebook." With respect to 

the second circumstance, the court stated: "The Court finds that Petitioner has had more 

than five (5) years since the parties['] separation on May 12, 2009 to become selfsupporting, but has made no effort to obtain additional skills. She has only been working 

part-time and receiving her share of Respondent's U.S. Navy retirement pay. In the time 

since the Gavron warning until now, Respondent hasn't done what the Court would 

expect."
16

Expense Declaration and Todd's declaration, demonstrating that Donna and Todd live 

together, that they share the cost of rent of their home, and that Todd pays all utilities 

related to their shared home. Although Donna contended that Todd "has no ability to 

cover expenses for me, and I therefore 'pay my own way,' " the trial court could rely on 

the Income and Expense statement provided by Donna, and the information about her 

shared living arrangement, and determine that Donna's cohabitation with Todd was a 

significant change in her circumstances, one that reduced her need for support and 

provided good cause to revisit Bruce's support obligation. In fact, this changed 

circumstance alone was sufficient to justify the trial court's reduction in Bruce's monthly 

support obligation to zero.

Nevertheless, Donna posits that to the extent the trial court may have relied on her 

cohabitation with Todd, this was error because the parties intended the "deletion [of 

cohabitation as a factor justifying termination of jurisdiction over spousal support from 

the parties' stipulated judgment] to have the legal effect of removing cohabitation as a 

potential changed circumstance." She argues that it therefore "follows that the normal 

presumption of 'reduced need' based upon cohabitation should not be applied in the 

instant case."

The stipulated judgment provides: "The spousal support payments required 

by . . . Section 2.1 shall cease to be due on the earliest of the death of Respondent, the 

death of Petitioner, the remarriage of Petitioner, Petitioner's entry into a registered 

domestic partnership under California law, or the equivalent under the law of any other 

jurisdiction, or further Court order." The comma and the words "or further Court order"
17

are hand written in the document. The document includes lining out of the following 

language that followed immediately after "under the law of any other jurisdiction, . . .":

"the cohabitation by Petitioner with another adult unrelated person, 

or further Court order. For purposes of terminating support, 

cohabitation with another person shall mean Petitioner residing with 

another person of the opposite sex for more than thirty (30) 

consecutive or nonconsecutive days in a sexual, romantic, or 

homemaker-companion relationship, regardless of whether they hold 

themselves out as married."

By lining out the above language, the parties removed Donna's cohabitation from 

the list of possible circumstances that would cause the termination of Bruce's spousal 

support obligation. We disagree with Donna's suggestion that the parties intended that 

the deletion of this language would have the additional effect of preventing the court 

from considering Donna's cohabitation as a changed circumstance related to Donna's 

need for support.

The language of the stipulated judgment is referring to particular events that, by 

their occurrence, would automatically extinguish Bruce's obligation to pay any spousal 

support. We do not interpret the parties' decision to remove cohabitation from this list, a 

list of events that trigger the complete extinguishment of any further support obligation, 

as also eliminating cohabitation as a factor that the court could consider in modifying the 

spousal support award. Rather, the deletion of cohabitation from this list was more likely 

intended to eliminate a potentially harsh result (i.e., the complete termination of any 

further support, without the possibility of a beneficial modification of support for Donna 

in the future, based on a casual cohabitation situation that lasted just over 30 days), in 

favor of permitting a court to consider the circumstances such as Donna's cohabitation 
18

with Todd and whether cohabitation of that nature reduced Donna's need for support from 

Bruce.6 We therefore reject Donna's contention that "[p]resumably, the parties intended 

that deletion to have the legal effect of removing cohabitation as a potential changed 

circumstance." The court therefore acted reasonably in applying the presumption of 

reduced need based upon cohabitation in this case.

The court also relied on Donna's failure to make any "effort to obtain additional 

skills," the fact that she has "only been working part-time," and, despite having been 

provided a Gavron warning, she had not "done what the Court would expect" with 

respect to becoming self-sufficient. "A trial court acts within its discretion in denying 

spousal support where the supported spouse has failed to diligently seek employment 

sufficient to become self-supporting." (In re Marriage of Shaughnessy (2006) 139 

Cal.App.4th 1225, 1238 (Shaughnessy); see also In re Marriage of Rosan (1972) 24 

Cal.App.3d 885, 896 ["When evidence exists that the party to be supported has 

unreasonably delayed or refused to seek employment consistent with her or his

ability . . . that factor may be taken into consideration by the trial court in fixing the 

amount of support in the first instance or in modification proceedings"].) " 'Whether 

 

6 For example, under the court's current order, the court retains jurisdiction over 

spousal support between the parties, and in the event that Donna ceases cohabitating with 

Todd, she is not prevented from requesting a modification of the current support amount 

in view of that material change of circumstance. (See Fam. Code, section 4323, subd. (c) 

["Nothing in this section [regarding the presumption of decreased need based on 

cohabitation] precludes later modification or termination of spousal support on proof of 

change of circumstances"].) However, if cohabitation had remained as an event that 

would trigger the extinguishment of Bruce's support obligation entirely, Donna would 

have no ability to seek a modification of the support order in the future if her cohabitation 

were to end.
19

there has been such unreasonable delay [in seeking employment] is a question addressed 

peculiarly to the trial court which heard the party's testimony and observed the party's 

demeanor at trial.' [Citation.] There is no requirement that the failure to exercise 

diligence in seeking gainful employment has been in bad faith." (Shaughnessy, supra, at 

p. 1238.)

Donna's own declaration demonstrated her lack of efforts to become more 

gainfully employed. In her declaration, Donna asserted she has "worked to the best of 

[her] ability," but that so far she has "only been able to secure seasonal work." Donna 

states, "I was out of the job market for much of our marriage, and was not able to develop 

'career' skills. Further, nothing has changed since separation that has improved my 

earning capacity. I am fifty-two (52) years old, and in good health, but my resume does 

not command high salaries in the current market." Donna's statements are notable for 

what is absent from them. She does not attest to having applied for numerous jobs and 

having been rejected, nor does she attest to having applied for any job and being rejected; 

the trial court could rightly infer that Donna had not put forth reasonable effort to try to 

find anything other than seasonal employment. Donna also contends that "nothing has 

changed since separation" to "improve[ ]" her earning capacity. However, the things that 

could have "changed since separation" to "improve[ ]" Donna's earning capacity were 

largely within Donna's control. For example, Donna does not state that she took classes 

or engaged in other job-skills preparation during the five-year period since she was given 

the Gavron warning. The trial court could reasonably infer from Donna's declaration that 
20

she had not attempted to improve her employment skill set in the intervening time.7 

Further, Donna's reference to her resume "not command[ing] high salaries in the current 

market" suggests that Donna was not adequately considering lower salaried job 

opportunities. Donna was not expected to earn a "high" salary; rather, as the court noted, 

the court expected Donna to make reasonable efforts to find regular employment and 

work toward becoming self-sufficient.

Donna was given notice that she was expected to make the effort to become selfsupporting through the Gavron warning included in the parties' stipulated judgment. 

"Inherent in the concept 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 a modification in spousal support is the premise that the supported spouse be 

made aware of the obligation to become self-supporting." (Gavron, supra, 203 

Cal.App.3d at p. 712.) Donna was told that "[t]he failure to make reasonable good faith 

efforts [to become self-supporting] may be one of the factors considered by the Court as a 

basis for modifying or terminating support," and she was notified that she had "a duty to 

contribute to her own support." Donna presented no evidence that she was contributing 

to her own support, or that she had made "reasonable good faith efforts" to become selfsupporting. The absence of any evidence that Donna had made reasonable efforts to 

 

7 The trial court even addressed this issue during oral argument, in response to 

Donna's contention that she did not have "the money to [obtain additional schooling to 

improve her skills]," stating: "But you have had, you've had $4,000 a month for five 

years," and "Ma'am, there's all kind of classes you can take with very little money."
21

become self-supporting is sufficient to support the trial court's finding that Donna was not 

meeting her obligation to make reasonable efforts to become-self-supporting.

We conclude that Donna was provided sufficient notice of the material changes in 

circumstances on which Bruce was relying in seeking a modification of the spousal 

support award. We further conclude that, contrary to Donna's contention, the trial court 

did find material changes of circumstances sufficient to justify the court's modification of 

the spousal support order. 

C. Donna forfeited her contention that the court failed to consider and weigh the 

factors set forth in Family Code section 4320; in any event, her contention is 

without merit

Donna contends that the order should be reversed because "the trial judge did not 

comply with the statutory requirement of considering, weighing, and applying all of the 

factors set forth in Family Code section 4320." (Formatting omitted.)

As an initial matter, we note that Donna did not raise this issue in the trial court 

nor did she request that the trial court provide additional analysis of the Family Code

section 4320 factors.

Generally, the failure to raise an issue in the trial court forfeits that issue for 

appellate review. (People v. Saunders (1993) 5 Cal.4th 580, 589.) The purpose of the 

rule is to provide the trial court with an opportunity to rule on the issue. (Performance 

Plastering v. Richmond American Homes of California, Inc. (2007) 153 CalApp.4th 659, 

668, fn. 3.) " 'Appellate courts are loath to reverse a judgment on grounds that the 

opposing party did not have an opportunity to argue and the trial court did not have an 

opportunity to consider. [Citation.] In our adversarial system, each party has the 
22

obligation to raise any issue or infirmity that might subject the ensuing judgment to 

attack. . . .' " (Kashmiri v. Regents of University of California (2007) 156 Cal.App.4th 

809, 830.) A contrary rule would encourage parties to remain silent in the trial court,

hoping for reversal on appeal.

At the hearing, when the trial court stated its ruling regarding Bruce's request to 

modify spousal support, including the court's statement that it would incorporate "the 

prior 4320s" from the parties' stipulated judgment, Donna failed to raise any concern with 

the court's approach. Had she done so, the court could have addressed her concerns and 

more fully articulated its consideration of the relevant factors. However, Donna did 

nothing, and instead allowed the court to make its ruling without registering any 

objection. Donna's failure to raise this issue with the trial court at a time when the trial

court could have addressed her concerns forfeits this contention on appeal.

However, even on its merits, Donna's contention is flawed. Donna asserts that 

Family Code section 4320 mandates the consideration of each of the factors. Although 

the statute does state that the trial court "shall consider" the listed factors, the statute does 

not require that the court make specific findings with respect to each one of the individual 

factors or that the court specifically note that it has taken each one of the factors into 

consideration. Rather, the court is required to "consider and weigh all of the 

circumstances enumerated in the statute, to the extent they are relevant to the case before 

it." (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 302, fn. omitted, italics 

added.)
23

Not every factor was relevant to the case before the court.8 Further, there is no 

rule that holds that the absence of a discussion of a Family Code section 4320 factor 

demonstrates that the trial court failed to consider the factor; courts can "consider"

matters without discussing them in a written ruling. (See Gonzales v. Interinsurance 

Exchange (1978) 84 Cal.App.3d 58, 63 ["consider" means to view attentively; to fix the 

mind on, with a view of careful examination; to think on with care; to ponder].) Thus, 

the mere lack of express findings as to each factor listed in Family Code section 4320 is 

insufficient to demonstrate that the court abused its discretion.

Further, the trial court was considering a motion to modify spousal support, based 

on certain limited grounds—i.e., the asserted changes in Donna's circumstances. The 

court adequately addressed these changed circumstances in its ruling. In 2010, the trial 

court relied on the parties' stipulation with respect to the other factors—a stipulation in 

which the parties agreed that Bruce would be obligated to pay Donna a certain amount in 

spousal support. In the stipulation, the parties themselves stated that they had both 

considered the Family Code section 4320 factors in reaching the $4,000 per month 

figure. Although the stipulated judgment does not list any "findings" regarding these 

factors, it is clear that Donna and Bruce both acknowledged that they had "considered"

the appropriate factors. The trial court was justified in relying on the parties' stipulation 

that they had considered the relevant factors in determining that $4,000 per month would 

 

8 For example, subdivision (m) of Family Code section 4320 refers to "[t]he 

criminal conviction of an abusive spouse" being considered. In this case, where there is 

no evidence of either party having a criminal conviction, there is simply no need for the 

trial court to expressly note that it considered this factor.
24

be sufficient to maintain Donna in the standard of living established during the marriage 

when it entered as the court's judgment the stipulated agreement submitted by the parties.

In 2014, when Bruce sought modification, the only changes to any of the relevant 

Family Code section 4320 factors that either party raised were the two grounds that the 

trial court expressly addressed—i.e., Donna's cohabitation with Todd and the passage of 

time without evidence that Donna had made reasonable efforts to become self-supporting. 

It was enough for the trial court to explicitly address the two points presented in Bruce's 

RFO as constituting material changes of circumstances where there was no allegation that 

there was any change with regard to any of the other factors listed in Family Code section 

4320.

D. No abuse of discretion has been demonstrated on the ground that the court's order 

"leaves the parties at significantly different standards of living"

Donna's final argument is that the trial court's order constitutes an abuse of 

discretion because it "leaves the parties at significantly different standards of living." 

(Formatting omitted.) The problem with Donna's contention is that there is evidence to 

demonstrate that she agreed, in 2010, that $4,000 per month met her reasonable needs 

consistent with the "middle class" standard of living that had been established during the 

marriage. Thus, the trial court could reasonably conclude that if Donna had the ability to 

have her needs met in ways apart from Bruce's support payment, then she could continue 

living in a manner consistent with the "middle class" standard to which she agreed she 

was entitled without the support payment. There is evidence in the record to support the 

trial court's determination that Donna could have her need for approximately $4,000 a 
25

month met in ways apart from spousal support. Again, Donna now shares rent on a 

single family home (as opposed to a one-bedroom apartment, as acknowledged by 

Donna's attorney at the hearing on the matter), Todd pays the utilities for their shared 

home, and Donna stated that approximately $1,747 of her monthly expenses are paid for 

by others. In addition, although the court did not impute a certain income to Donna, it is 

clear that the court believed that Donna has the ability to earn some income on a regular 

basis, even if she works only part time and for minimum wage. The evidence supports 

the conclusion that if Donna makes reasonable efforts to support herself, she will be able 

to make up for some portion of the spousal support that she is no longer receiving; 

indeed, Donna reported that she was able to earn approximately $400 per month in 

November and December 2013 with part-time employment. We cannot conclude that the 

trial court significantly altered Donna's standard of living from a "middle class" standard; 

the evidence supports the conclusion that Donna's standard of living can remain 

sufficiently similar to the standard of living to which she agreed she was entitled in 2010, 

even with a reduction in her spousal support to zero.9 Donna has demonstrated no abuse 

of discretion in this aspect of the trial court's ruling.

 

9 To the extent that Donna is now arguing that she is entitled to a higher standard of 

living because her standard of living is not sufficiently equivalent to Bruce's standard of 

living, such an argument was waived when Donna agreed to the terms of the stipulated 

judgment. Donna agreed that the "middle class" standard of living is the standard of 

living to which she was entitled based on the standard of living established during her 

marriage to Bruce; she cannot now complain that such a standard of living differs 

dramatically from Bruce's standard of living. Thus, as long as there is evidence in the 

record to demonstrate that Donna will continue to have a "middle class" standard of 

living even after the reduction in her spousal support, then there can be no abuse of 
26

IV.

DISPOSITION

The order of the trial court is affirmed. Respondent is entitled to costs.

AARON, J.

WE CONCUR:

McCONNELL, P. J.

McDONALD, J.

 

discretion with respect to the parties' purportedly differing standards of living at this point 

in time.