Filed 2/10/ 22 Marriage o f Kress CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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 order s 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
reduc ing the spousal support obligation of Robert L. Kress (husband) from $5,250 per month, pursuant to the ir stipul ated judgment of dissolution, to $3,750 per month, pursuant to his

requ est 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 a n alleged diminution in his
income affect ing 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. T he 2013 S tipulated J

udgment of D issoluti on 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 sti pulated judgment of dissolution. As relevant to this appeal, the judgment provided for permanent spo usal 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 woul d have ordered support taking into3

account the factors set forth in Family Code 1 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 & K rantz 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 stipul ated by the parties to be 7 5 percent of the entire plan; and one

- half of t he community property portion of t he Public Employees Retirement System plan (the PERS Plan), wi th the community property porti on 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 parti es. 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 S pousal S upport F ollowing H

is P artial R etirement In 2018, five years after entry of the stipulated judgment, husband filed an RFO to modify spousal support. Husband
asserted his income had d ropped 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 th e City of San Gabriel

. On December 13, 2018, the trial court conducted an
evident iary 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 dec ided 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 part

time in husband’s law office until about 2002, doing research, editing and answer ing the phones. She ha d no immediate plan to seek employment. She ha d a condominium in Whittier own ed free and clear; it was acquired prior to the marriage and wa s rented out for $908 per month. She own ed a home in Upland,
which wa s her prima ry residence and which she occupie d part

time. Her adult son also reside d in the Upland home on a full

time basis ; his sole contribution to the household expenses wa s paying the gardener. She also own ed a home in Massachusetts
where she reside d about five months of the year; the Massachusetts property , on which she owe d about $180,000, d id not generate any rental in come. She ha d about $342,000 in the5

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 recon sider 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 “abi lity 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
modif ying 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
livin g

. . . [and] that this is a very long

- term marriage and . . . I assume [husband] would have expected to have to continue to provide so me 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
aft er 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 r eduction 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 self

support ing. [¶] ( 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 co uld be u sed to generate income. [¶] ( 8) Both [wife] and [husband] are able to live an upper middle class standard of living on th e assets they have available. [¶] ( 9) This is a long

- term marriage. [¶] ( 10) The Court considered all Family
Code section 4320 fact ors in rendering its decision.”7

III. Wif e R equest s T

he Trial Court to Vacate T he April 17, 2019
O rder 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 suppor t order, or in the alternative, to

set a new trial. (Code Civ. Proc., § 65 7 .) 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 t he proper basis on
which to b ring this matter before the Court. [¶] The Court finds the motions to be procedurally inappropriate. [¶] The Court
fi nds if it were to consider the Motions on their merits, it would likewise deny them because the Court r eviewed the C ourt 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 A

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

po stjudgment 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 noti ce 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, Oct ober 14, 2019 was a court holiday, the notice of appeal filed the next day was timely. However, t he June 11, 2020 notice of appeal in B306505 i s untimely

, because even if8 DISCUSSION
I. Governing Legal P rinciples and S tandard of A ppellate R eview

“ A spousal support order is modifiable only upon a material change of circumstances since the last order. ‘ Change of
circumstances’ means a reduction or in crease in the supporting spouse’ s ability to pay and/or an increase or d ecrease 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

. T he T rial C ou rt A bused its D iscretion in Re ducing S pousal 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 th e November 26 , 2019 order. Therefore, the November 26 , 2019 order denying wife’s motion to vacate the April 17, 2019 order is not reviewable.9

motion to modify a support order, depending on the circumstances of a given case. The loss of income as a result of a

suppor ting spouse’ s re tirement at an a ppropriate 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 modifica tion 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. H owever, h usband failed to show a n overall change of circumstances ba sed on a diminution in his
income. T he evidence established his annual in come 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 award ing wife spousal support of $5,250 per month. Specifically, h usband’ s testimony at the hearing and his income and expense declaration showed h e receive d an average of $11,600 per month for his work for the City of La Verne, which

amount ed to $139,200 per year. Further , he receive d social security b enefits 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, ha d a balance of about $1,150,000, from which he drew a requi red 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 admi ttedly
ha d an income of $252,840 per year , which was higher than the $225,000 annual income set forth in the stipulated judgment of
dissolution award ing 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 judgme nt. (See, e.g., In re Marriage of Dietz

, supra , 176 Cal.App.4th at p. 400 [“ the accessibility and possibl e increase in value of Laura’ s share of the retirement ac counts were part of the parties’ expressed reasonable expectations in entering the 1999 stipu lated 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 d istributions 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 t he 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 “o nce the participant reaches age 70 1/2, the court possesses discretion to consider as income available for spousal support an amount11

greater than the statutorily mandate d 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, w ife 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 co urt to include in husband’s income the required
minimum distribution amounts actually d istributed to husband
from his 401k and IRA accounts. The trial court’s failure to
include th ose 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 o btain employment , and it found no reason why she could not obtain minimum wage employment. W e note wife wa s 6 3 years old at the time of the
hea ring

. Leaving aside whether the judgment adequately p laced
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 wi fe 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.
DI SPOSITION The April 17, 2019 order reduc ing husband’s spousal support obligation from $5,250 to $3,750 per month is reversed

, and t he matter is remanded for further proceedings consistent
with thi s 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 Ju stice pursuant to article VI, section 6 of the California Constitution.