CASE HIGHLIGHTS: IN RE MARRIAGE OF WEINSTEIN

In Re Marriage of Weinstein 4 Cal.App. 4th 555

FACTS:

MARRIED: 1965
SEPARATED: 1987
(21 year long term marriage)

CHILDREN: At the time of trial, their older son, Bradley, was 19 years old and lived with respondent, and their younger son, Kevin, was about to turn 18 and lived with appellant.

SUPPORTING SPOUSE/HUSBAND
NET INCOME:
1981 218,909
1982 274,153
1983 232,487
1984 286,626
1985 281,269
1986 317,870
(Separation Date/Divorce Filed: February 18, 1987

1987 353,076 (Estimated net after tax income made by wife's expert)
1988 427,308 (Estimated net after tax income made by wife's expert)

Husband estimated he worked close to a hundred hours a week as an obstetrician.
Supported spouse/wife worked as a secretary for the first three and a half years of the marriage, and did not work for compensation after that time. She was actively involved in volunteer work for Jewish and hospital-related organizations, spending as much as 30 hours a week on these activities. Wife had three herniated discs which caused her discomfort if she sat for too long.

LOWER COURT SPOUSAL SUPPORT ORDERS:
IN SUPPORT ORDERS, LOWER COURT PROPERLY DID NOT CONSIDER POST SEPARATION $146,039 INCREASE IN HUSBANDS ANNUAL INCOME
[1988: $427,308 - 317,080 = $146,039 ]

• The court's calculation and resulting order was based on AVERAGE of community income from 1981 through 1986.
• The court did NOT consider husband's 1988: net after tax income of $427,308.
• The lower court issued spousal support order of $8,500 per month, or 102,000 annually. (That is approx. 32% of husband's 1986 NET income. )

The trial court stated that spousal support of $8,500 per month was "consistent with the party's lifestyle during marriage." The statement of decision notes four factors that were specifically considered in setting the amount of support:

1. Wife could live well on a net (after tax) income of $5,500 and had done so on less between February 1987 and April 1988;
2. Husband had been and would be contributing heavily to the education of the parties' sons and would not expect wife to do so;
   
3. Wife's expense itemization included extravagant and nonexistent items; and
   
4. Wife had some minor income beyond spousal support.

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Wife appealed, claiming:

1. Trial court erred in failing to consider respondent's higher post-separation income in setting the amount of spousal support.
2. Trial court erred in defining the marital standard of living by reference to the parties' income during marriage rather than their actual expenditures and
   

• APPEALS COURT FOUND LOWER COURT ACTED PROPERLY IN NOT CONSIDERING POST SEPARATION INCREASE IN HUSBANDS INCOME IN SUPPORT ORDERS:

Where, as here, an award based on marital income level is sufficient to maintain the marital standard of living, there is no occasion to draw upon post-separation income. "It is ... (supported wife's)...needs which must be examined, not ... (husband's).... standard of living due to post-separation separate property earnings." (In re Marriage of Smith (1990) 225 Cal.App.3d 469 at p. 487)(Text added)

See also: In re Marriage of Hoffmeister (1987) 191 Cal.App.3d 351:

Hoffmeister involved a wife's request for modification of spousal support five months after entry of an interlocutory judgment on the grounds that the husband's income had increased and her needs, measured by the marital standard of living, remained unmet. The court held that when a request for modification of support is based on an increased ability to pay, the supported spouse must also show that his or her needs at the time of separation were not met. (Hoffmeister, 191 Cal.App.3d at p. 364.)

APPEALS COURT FURTHER FOUND:

• FOR COMPUTING SPOUSAL SUPPORT, STANDARD OF LIVING SHOULD NOT BE BASED ON UNREASONABLE WORK HOURS BY SUPPORTING SPOUSE DURING MARRIAGE
• FOR COMPUTING SPOUSAL SUPPORT, STANDARD OF LIVING SHOULD NOT BE BASED ON OR ON MARITAL LIVING STANDARD THAT WAS BEYOND COMMUNITY'S MEAN

Citing In re Marriage of Smith (1990) 225 Cal.App.3d 469, the Weinstein court stated:

"While [Smith ] ... noted that "the reference point is usually the actual marital standard of living, that is, actual expenditures during the marriage" (id., at p. 484), Smith cautioned that standard of living is neither a "floor" nor a "ceiling" for spousal support but "merely a 'basis' or reference point for determining need and support." (Ibid.) In that case, because the husband had worked unreasonable hours during the marriage and the couple had lived beyond their means, the court found the actual marital standard of living had "reduced significance as a point of reference in determining [the supported spouse's] reasonable needs and support" and was eclipsed by "what would have been a reasonable standard of living." (Id., at pp. 485-486.)"
In Re Marriage of Weinstein 4 Cal.App. 4th 555 at p. 566. [Emphasis added]