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Court of Appeal:
No Change in Support Obligation of Out-of-Work Party
Opinion Affirms Denial of Motion to Modify Judgment in Dissolution of Marriage Case
By a MetNews Staff Writer
The Court of Appeal for this district yesterday affirmed the denial of an order for modification of spousal and child support payments even though the obligor spouse had lost his job, noting that work as an independent accountant is bound to have ups and down and agreeing with the ex-wife that there should not be a “merry-go-round” of support litigation.
Justice Steven Z. Perren of Div. Six authored the unpublished opinion. It which affirms a Jan. 21 order by Los Angeles Court Judge Timothy M. Weiner who denied Prem Goyal’s request for an order (“RFO”) for a modification of his support obligations.
Weiner found:
“There has been no change in circumstances.” Goyal argued that there was, in fact, a significant change: He no longer was receiving a monthly payment of $40,700 from LegalZoom for services as a consultant.
Fourth District Decision
The ruling, he contended, contravenes the Aug. 14, 2008 Court of Appeal decision by the Fourth District’s Div. Three in In re Marriage of Mosley.
There, a former husband, attorney Paul Mosley, had lost his job with a law firm and was unable to find employment in the legal profession.
He had become a FRO homebuilder—with the prospect, but not certainty, of a bonus at the end of the year. If received, it would place his income at the same level as that realized in practicing law.
“In this case,” Justice Eileen C. Moore wrote, “it exceeded the bounds of reason to require Paul to pay nearly 100 percent of his take-home pay in support payments, on the assumption, based on only a one-year history with the homebuilder, that he would continue to receive a six-figure bonus each subsequent year.
“It placed him in a position of having to borrow for his living expenses, and thus resulted in a miscarriage of justice.”
She remarked that even if Mosley did receive a year-end bonus he “should not be left to borrow 11 months of the year” to make his support payments.
Perren’s Opinion
Perren said in yesterday’s opinion:
“A spouse’s earning capacity, not just actual income, may enter the equation when gauging their ability to pay….The court properly considered Prem’s work history over the past decade as evidence of his earning capacity.
“The record does not show the court denied the RFO only based on Prem’s status as an independent professional; rather, it found the expiration of his most recent short-term contract as an event both natural to his work and anticipated by the parties.”
He continued:
“It did not foreclose a later finding that a longer period of unemployment may justify modification, or, like in Mosley, that Prem’s obtaining a lower-salaried position in the future might alter the calculus as well.
“The fact that Prem might have to temporarily invade his separate assets to satisfy stipulated support obligations does not render the trial court’s decision irrational or arbitrary.”
Separate Assets
In a footnote, Perren pointed out:
“The parties’ lack of assets and considerable debt factored into Mosley’s decision to reverse the trial court’s order denying the supporting spouse’s request to modify. In contrast, the record shows Prem’s net separate assets exceeded $1 million at the time he sought modification. This fact alone could have justified the trial court’s denial.”
The case is Marriage of Goyal, B306425.
Beverly Hills attorney Ruth S. Kremen of Kleeman-Kremen Family Lawyers represented the ex-wife, Hillary Goyal, and Century City practitioner Lauren E. MacKay of MacKay & Martin argued for Prem Goyal.
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