Filed 2/10/22 Marriage of Kress CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

In re Marriage of NANCY R. 

and ROBERT L. KRESS.

 B303371

 (Los Angeles County

 Super. Ct. No. BD519842)

NANCY R. KRESS,

Appellant,

v.

ROBERT L. KRESS,

Respondent.

APPEAL from orders of the Superior Court of Los Angeles 

County, Gary D. Roberts, Judge. Reversed and remanded.

Law Office of Leslie Ellen Shear, Julia C. Shear Kushner 

and Leslie Ellen Shear for Appellant.

Thompson & Thompson, Blake D. Thompson and Jeffrey S. 

Valladolid for Respondent.
2

Nancy R. Kress (wife) appeals a postjudgment order 

reducing the spousal support obligation of Robert L. Kress 

(husband) from $5,250 per month, pursuant to their stipulated 

judgment of dissolution, to $3,750 per month, pursuant to his 

request for an order (RFO) to modify spousal support.

We conclude the trial court abused its discretion in 

reducing spousal support, because husband failed to show a 

change of circumstances based on an alleged diminution in his 

income affecting his ability to pay support. The undisputed 

evidence established notwithstanding husband’s partial 

retirement, his annual income at the time of the RFO hearing

was actually higher than his income at the time judgment was 

entered. Accordingly, we reverse and remand for further 

proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

I. The 2013 Stipulated Judgment of Dissolution 

Husband has been a California attorney since 1972. Wife 

obtained a law degree in 1987 but did not pass the bar exam. 

The parties were married in 1988. Wife worked part-time 

between 1988 and 2002, but she was not employed in any 

capacity thereafter. In 2010, after nearly 22 years of marriage, 

the parties separated. There are no minor children of the 

marriage.

In 2013, the parties entered into a stipulated judgment of 

dissolution. As relevant to this appeal, the judgment provided for 

permanent spousal support of $5,250 per month, until death, 

remarriage, or further order of the court. The judgment stated 

wife had not been employed since 2002, and husband earned 

$225,000 in 2011. The judgment also stated that absent the 

stipulation, the court would have ordered support taking into 
3

account the factors set forth in Family Code1 section 4320, 

including the goal that wife shall be self-supporting within a 

reasonable period of time.

The judgment awarded each spouse one-half of the 

community portion of the ABA Retirement Funds Wallin, Kress, 

Reisman & Krantz Profit Sharing Plan (the ABA Plan), with the 

community property portion previously determined to be 68 

percent of the entire plan; one-half of the community property 

portion of the Rosemead PARS Retirement Enhancement (the 

PARS Plan), with the community property portion stipulated by 

the parties to be 75 percent of the entire plan; and one-half of the 

community property portion of the Public Employees Retirement 

System plan (the PERS Plan), with the community property 

portion stipulated by the parties to be 75 percent of the entire 

PERS Plan. Monthly benefits under the PARS Plan and the 

PERS plan were already being paid to the parties.

The judgment confirmed to husband as his sole and 

separate property 100 percent of the separate property portion of 

the ABA Plan, the PARS Plan and the PERS Plan. The judgment 

also confirmed as husband’s separate property 100 percent of his 

rollover IRA with Morgan Stanley.

II. Husband Requests Modification of Spousal Support 

Following His Partial Retirement

In 2018, five years after entry of the stipulated judgment, 

husband filed an RFO to modify spousal support. Husband 

asserted his income had dropped by approximately 50 percent 

since the 2013 judgment, because although he still worked as city 

1 All unspecified statutory references are to the Family Code.
4

attorney for the City of La Verne, he had retired as city attorney 

for the City of San Gabriel.

On December 13, 2018, the trial court conducted an 

evidentiary hearing. Husband testified he was a municipal 

lawyer and his firm contracted with smaller cities to serve as 

their city attorney. In October 2017, he retired as city attorney 

for the City of San Gabriel. He had reached his 70th birthday 

and had decided to downsize his practice. At that time, half of 

his income from the practice of law disappeared. His sole 

remaining client was the City of La Verne. At that time, his 

monthly average income attributable to the City of La Verne was 

$11,600. Further, he was drawing social security benefits of 

$2,473 per month, as well as pension income of $3,425 per month. 

In addition, the ABA Plan, a 401k account, had a balance of 

about $1,150,000, from which he took a required minimum 

distribution at age 71 of $34,768. He also received a distribution 

of $8,096 from his IRA account for the year.

Wife, who was 63 at the time, testified she worked parttime in husband’s law office until about 2002, doing research, 

editing and answering the phones. She had no immediate plan to 

seek employment. She had a condominium in Whittier owned

free and clear; it was acquired prior to the marriage and was 

rented out for $908 per month. She owned a home in Upland, 

which was her primary residence and which she occupied parttime. Her adult son also resided in the Upland home on a fulltime basis; his sole contribution to the household expenses was 

paying the gardener. She also owned a home in Massachusetts 

where she resided about five months of the year; the 

Massachusetts property, on which she owed about $180,000, did

not generate any rental income. She had about $342,000 in the 
5

ABA Plan, and about $990,000 of equity in real estate. Her 2016 

federal tax return showed she had a pension and annuity 

distribution of $49,174 from the PERS Plan, the PARS Plan and 

the ABA Plan.

In closing argument, husband’s counsel asserted husband’s 

retirement at age 70 from his position as city attorney for the 

City of San Gabriel, which resulted in the loss of about $10,000 

per month in income, amounted to a change of circumstances that 

enabled the court to reconsider the $5,250 per month spousal 

support agreed to in the judgment. With respect to the required 

minimum distributions husband was receiving, counsel argued it 

was not appropriate “to force him to continue to maintain a level 

of spousal support because he is choosing to draw down on . . . 

retirement assets, that he has contributed to during 45 years as 

an attorney.” In response to the court’s inquiry, counsel conceded 

the judgment did not contain a Gavron warning.

2

Wife’s counsel argued husband’s “ability to pay has not 

changed significantly, if at all, since the judgment was entered. 

So I don’t think that’s a factor the court could consider in 

modifying spousal support.”

After hearing testimony and argument, the trial court ruled 

as follows: “First, there has been a material reduction in 

[husband’s] income. And I am not persuaded that it’s appropriate 

to use mandatory distributions as a means of off-setting that. I 

do believe that’s double dipping. [¶] Second, I find that the 

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

requires “some reasonable advance warning that after an 

appropriate period of time the supported spouse [is] expected to 

become self-sufficient or face onerous legal and financial 

consequences.”
6

judgment adequately puts [wife] on notice of her need to become 

self-supporting. . . . [¶] The third factor that I take into account 

is that [wife] has at least one asset . . . in the form of the home in 

Massachusetts that could be used to generate income . . . . [¶] 

The question then becomes . . . what sort of modification is 

appropriate. Taking into account the marital standard of 

living . . . [and] that this is a very long-term marriage and . . . I 

assume [husband] would have expected to have to continue to 

provide some significant support . . . for some period of 

time[,] . . . I find that it’s appropriate to modify the spousal 

support to $3,750 a month, retroactive to the date of the filing of 

the RFO.”

On April 17, 2019, the trial court signed and filed an order 

after hearing that reduced wife’s spousal support from $5,250 to 

$3,750 per month based on the following findings: “(1) There has 

been a material change of circumstances . . . [¶] (2) There has 

been a material reduction in [husband’s] income. [¶] (3) It is not 

appropriate to use mandatory retirement distributions to offset 

[husband’s] reduction in income. [¶] (4) The Judgment 

adequately puts [wife] on notice of her need to become selfsupporting. [¶] (5) It is still possible for [wife] to make some 

income toward her own support. [¶] (6) There is no reason that at 

the present time [wife] could not obtain minimum wage 

employment. [¶] (7) [Wife] has at least·one asset, the home in 

Massachusetts, that could be used to generate income. [¶] (8) 

Both [wife] and [husband] are able to live an upper middle class 

standard of living on the assets they have available. [¶] (9) This 

is a long-term marriage. [¶] (10) The Court considered all Family 

Code section 4320 factors in rendering its decision.”
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III. Wife Requests The Trial Court to Vacate The April 17, 2019

Order

On May 10, 2019, wife moved to vacate the April 17, 2019 

order pursuant to Code of Civil Procedure section 663 and to 

reinstate the prior spousal support order, or in the alternative, to 

set a new trial. (Code Civ. Proc., § 657.) In addition, wife 

requested an award of $20,000 in attorney fees.

On November 26, 2019, the trial court rejected wife’s 

challenges to the April 17, 2019 order, stating, “Code of Civil 

Procedure section[s] 663 and 659 are not the proper basis on 

which to bring this matter before the Court. [¶] The Court finds 

the motions to be procedurally inappropriate. [¶] The Court 

finds if it were to consider the Motions on their merits, it would 

likewise deny them because the Court reviewed the Court file 

and reviewed the evidence and is comfortable that the [prior] 

decisions . . . were the appropriate ones.” The trial court ordered

husband to pay $10,000 in attorney fees to wife’s counsel, finding 

a significant disparity between the parties in terms of their 

respective ability to pay attorney fees and costs.

IV. The Appeals

Wife appealed the April 17, 2019 and November 26, 2019 

postjudgment orders, in notices of appeal filed October 15, 2019 

and June 11, 2020, respectively. The two appeals were 

consolidated into the instant case.

3

3 The October 15, 2019 notice of appeal in B303371 is timely 

because there is no indication notice of entry of the April 17, 2019 

order was served by the clerk or by a party. Therefore, the 180-

day rule applies (Cal. Rules of Court, rule 8.104(a)(1)), and 

because the 180th day, October 14, 2019 was a court holiday, the 

notice of appeal filed the next day was timely. However, the June 

11, 2020 notice of appeal in B306505 is untimely, because even if 
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DISCUSSION

I. Governing Legal Principles and Standard of Appellate Review

“A spousal support order is modifiable only upon a material 

change of circumstances since the last order. ‘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. It includes all factors affecting need 

and the ability to pay. Where there is no substantial evidence of 

a material change of circumstances, an order modifying a support 

order will be overturned for abuse of discretion. [Citation.] ‘The 

modification of a spousal support order is reviewed on appeal for 

abuse of discretion. In exercising its discretion the trial court 

must follow established legal principles and base its findings on 

substantial evidence. [Fn. omitted.] If the trial court conforms to 

these requirements its order will be upheld whether or not the 

appellate court agrees with it or would make the same order if it 

were a trial court.’ [Citation.]” (In re Marriage of West (2007) 

152 Cal.App.4th 240, 246, italics added.)

II. The Trial Court Abused its Discretion in Reducing Spousal 

Support 

Wife contends the trial court applied the wrong legal 

standard in granting the downward modification of spousal 

support. We agree. 

A “supporting spouse’s attainment of retirement age may 

constitute a material change of circumstances for purposes of a 

the 180-day rule applies, the notice of appeal was filed more than 

180 days after the November 26, 2019 order. Therefore, the 

November 26, 2019 order denying wife’s motion to vacate the 

April 17, 2019 order is not reviewable.
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motion to modify a support order, depending on the 

circumstances of a given case. The loss of income as a result of a 

supporting spouse’s retirement at an appropriate age [may] be 

such a case.” (In re Marriage of Dietz (2009) 176 Cal.App.4th 

387, 404.) Here, however, the circumstances surrounding 

husband’s attainment of retirement age do not support a 

reduction in spousal support.

Husband sought a modification of spousal support based on 

the assertion his income has been reduced by approximately 50

percent due to his retirement from one of the cities for which he 

served as city attorney. However, husband failed to show an 

overall change of circumstances based on a diminution in his 

income. The evidence established his annual income at the time 

of the hearing on the RFO to modify support was actually higher 

than the $225,000 income set forth in the judgment awarding

wife spousal support of $5,250 per month.

Specifically, husband’s testimony at the hearing and his 

income and expense declaration showed he received an average of 

$11,600 per month for his work for the City of La Verne, which 

amounted to $139,200 per year. Further, he received social 

security benefits of $2,473 per month, amounting to $29,676 per 

year, as well as pension income of $3,425 per month, amounting 

to $41,100 per year. In addition, the ABA Plan, which is a 401k 

account, had a balance of about $1,150,000, from which he drew a 

required minimum distribution of $34,768 at age 71. He also 

received a distribution of $8,096 from his IRA account for the 

year. Thus, at the time of the RFO hearing, husband admittedly 

had an income of $252,840 per year, which was higher than the 

$225,000 annual income set forth in the stipulated judgment of 

dissolution awarding wife spousal support of $5,250 per month.
10

There was no other basis to find a change of circumstances 

that would justify a reduction in spousal support. Insofar as the 

stipulated judgment divided the community assets and awarded 

wife one-half of the community portion of the ABA Plan, the 

PARS Plan and the PERS plan, those circumstances were 

expressly contemplated by and provided for in the judgment. 

(See, e.g., In re Marriage of Dietz, supra, 176 Cal.App.4th at p. 

400 [“the accessibility and possible increase in value of Laura’s 

share of the retirement accounts were part of the parties’

expressed reasonable expectations in entering the 1999 

stipulated judgment and cannot constitute a material change of 

circumstances on these facts”].)

As for the required minimum distributions from husband’s 

401k and IRA accounts, the trial court stated, “I am not 

persuaded that it’s appropriate to use mandatory distributions as 

a means of off-setting [the reduction in husband’s earnings]. I do 

believe that’s double dipping.” We disagree. “ ‘[I]n every case 

where one spouse receives permanent spousal support from the 

other spouse, the source is from the separate property of the 

paying spouse, including . . . earnings or property which were 

once the community property of both spouses.’ ” (In re Marriage 

of Epstein (1979) 24 Cal.3d 76, 91, fn. 14, superseded by statute 

on other grounds as stated in In re Marriage of Walrath (1998) 17 

Cal.4th 907, 914.)

With respect to withdrawals from retirement plans, the 

court in In re Marriage of Olson (1993) 14 Cal.App.4th 1, 

explained, “[w]ithdrawals from retirement plans, when made, are 

treated as ordinary income” (id. at p. 12), and “once the 

participant reaches age 70 1/2, the court possesses discretion to 

consider as income available for spousal support an amount 
11

greater than the statutorily mandated minimum withdrawals.” 

(Id. at p. 13; accord, In re Marriage of Reynolds (1998) 63 

Cal.App.4th 1373, 1380 [only investment income, not principal, 

should be available to pay spousal support, and husband is not 

required to invade or exhaust his retirement assets in order to 

pay spousal support]; see Hogoboom et al., Cal. Prac. Guide: 

Family Law (The Rutter Group 2021) ¶ 17:212.1.) Here, 

however, wife did not seek to impute to husband as income 

available for spousal support an amount greater than the 

statutorily mandated minimum withdrawals. She merely asked 

the trial court to include in husband’s income the required 

minimum distribution amounts actually distributed to husband 

from his 401k and IRA accounts. The trial court’s failure to 

include those actual distributions in husband’s income available 

for spousal support was erroneous.

Finally, the trial court based the reduction in spousal 

support, in part, on wife’s failure to obtain employment, and it 

found no reason why she could not obtain minimum wage 

employment. We note wife was 63 years old at the time of the 

hearing. Leaving aside whether the judgment adequately placed

wife on notice of her need to become self-supporting, the 

judgment stated wife’s last full-time employment was in 1988, 

she thereafter worked on a part-time basis, and she had not been 

employed in any capacity since 2002. Thus, it does not appear 

wife’s failure to secure employment in recent years was a change 

in circumstances. Moreover, husband’s RFO asserted a change of 

circumstances based on a 50 percent reduction in his income, not 

because wife had not taken steps to provide for her own support.

In sum, the trial court abused its discretion in reducing 

spousal support, because the undisputed evidence established, 
12

contrary to husband’s assertion, there had been no diminution in 

his income, and thus, no reduction in his ability to pay spousal 

support.

DISPOSITION

The April 17, 2019 order reducing husband’s spousal 

support obligation from $5,250 to $3,750 per month is reversed, 

and the matter is remanded for further proceedings consistent 

with this opinion. Wife shall recover her costs on appeal.

NOT TO BE PUBLISHED

KNILL, J.*

We concur:

EDMON, P. J.

EGERTON, J.

______________________

* Judge of the Orange County Superior Court, assigned by 

the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.