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Is It Proper To Give A GAVRON WARNING Before the Final Judgment Is Entered?

Q. Is it proper for the Family Court to give a domestic partner a Gavron Warning when I am receiving temporary partner support and we haven't divided our assets so that no final judgment has been issued in the case yet?


As you probably know, the same rules apply to registered domestic partners in California dissolution cases as apply to married persons. What we traditionally consider as "alimony" or "spousal support" is the same animal as partner support.

Marriage of Gavron was decided in 1988. The issue there was whether a trial court abused its discretion in terminating spousal support to a 57 year old wife based on her failure to become gainfully employed or to seek vocational training. The parties in Gavron had been married for 25 years and shared one adult child. They separated in 1976, and judgment was entered in June, 1979. In the final judgment the court ordered the former husband to pay spousal support until further order of court. Husband evidently really resented the obligation, because notwithstanding a relatively fresh separation, in 1981 he went back to court asking to reduce the support amount by half and to have it terminated after one more year of payments. That request was denied.

In 1986 Husband returned to court seeking to lower the payments and an order that support terminate. The court refused to lower support, but did order that after another five months support would be fixed at zero with the court retaining jurisdiction to reinstate it, until the death or remarriage of wife. The evidence was that while Husband attended dental school early in the marriage, Wife held different low paying jobs (although she did work at the dental office for a time after it opened), on and off, during the marriage and afterwards. She contended that most of these jobs were "too physically demanding," and there was uncontested evidence that she suffered tumors on her feet and shoulder problems. She did not seek any kind of retraining after separation. She did own some significant assets - her house was free and clear, she had no debt, and she had real estate venture investments. Husband had remarried, and had used most of his 401k to buy Wife out at the time of the dissolution; his business was becoming more competitive, and the evidence suggested he was overburdened and himself closing in on retirement.

The trial court was not impressed with Wife's efforts to become self-supporting. In setting a zero support award, it stated:

"Aside from demonstrating a lack of diligence, in regards to becoming employed, [Wife] remains highly improvident by relying on [Husband] for her sole support. She apparently has given no thought to the possibility that [Husband] may become incapacitated or meet an untimely demise. It should be noted that a marriage of twenty-five (25) years is not tantamount to social security. The Court is mindful that this is a lengthy marriage and that [Husband's] duty to support [Wife] will not terminate by the mere passage of time. Nonetheless, the [Wife's] failure to become employable or to seek training after so many years shift[s] the burden to her to demonstrate her continued need for support in light of her continued inaction in this regard."

The trial court was reversed. Essentially the justices found that nothing materially had changed (i.e., no change of the parties' circumstances as is required to modify most orders) between the date of the 1981 application to terminate support and the 1987 application - the parties' overall financial situations were much the same as in 1981. The appellate court observed:

"We recognize that it is in the best interests of both spouses and of society in general that the supported spouse become self-sufficient. Civil Code section 4801, subdivision (a)(1)(A) expressly directs that in determining the amount and duration of spousal support, a court is to consider as a factor the supported spouse's marketable skills and ability to engage in gainful employment. As the court observed in In re Marriage of Morrison, [citation omitted], 'It certainly may be inferred that by specifically setting forth this factor, the Legislature intended that all supported spouses who were able to do so should seek employment. It also appears the Legislature expected that courts would issue orders encouraging these spouses to seek employment and to work toward becoming self-supporting.'"

The Court continued:

"Nonetheless, the trial court here erroneously held that the wife's 'failure to become employable or to seek training after so many years shift[s] the burden to her to demonstrate her continued need for support in light of her continued inaction in this regard.' To the contrary, absent stated or reasonably undisputed prior expectations as to the supported spouse's future self-sufficiency at the time of the previous support order, after a lengthy marriage and an appropriate retention of jurisdiction to modify spousal support, 'the burden of justification is on the party seeking termination.'"

Finally it ruled:

"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. It is particularly appropriate here that there should have been some reasonable advance warning that after an appropriate period of time the supported spouse was expected to become self-sufficient or face onerous legal and financial consequences. There was a lengthy marriage during which the wife was unemployed except at the outset. The wife also presumably devoted herself initially to the development of her husband's earning capacity, rather than to her own earning capacity, then to wifely and parental duties, and now to the care of her elderly mother. * * * The wife may have lacked the personal foresight to more diligently seek employment prospects eight years earlier in 1979 when the original support order was fashioned. Nonetheless, she cannot be penalized now, years later, because of an apparent lack of judicial foresight in not forcing her to focus on the drastic legal and financial consequences of the then-unrevealed expectation that she become self-sufficient."

This became the "Gavron Warning, " also known as a "Gavron Admonition." This rule is now set forth in Judicial Council Form FL-180, the Judgment of Dissolution, such that at the time of entry of judgment and whether it is actually read by the supported party or not, the Gavron Warning is deemed to have been given:

"NOTICE: It is the goal of this state that each party will make reasonable good faith efforts to become self supporting as provided for in Family Code section 4320. 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 spousal or partner support."


Marriage of Tong and Samson (2011) 197 Cal.App.4th 23

Attorneys representing alimony payors want the Gavron Warning to be given at the earliest opportunity, so that they can argue to the Court early on and frequently that a supported spouse is shirking his or her responsibilities to be become self-supporting. Often this takes the form of an oral "oh, by the way, judge" type request in open court where a court is making support rulings. It is important to resist this request, and obviously if you are a payor (or represent one) it is important to urge that it be given. Some judges, usually those new to family law, can be persuaded to give the admonition on the record at an OSC type hearing in the early stages of the litigation.

I am not aware of any case authority that supports giving a Gavron Warning at the pendente lite (temporary) stage of the proceedings. The fact that it is found in Family Code 4320 and in the final judgment form are compelling evidence that both the legislature and Judicial Council view it as applicable only at time of trial, final judgment, or beyond.

Marriage of Tong and Samson provides good authority for objecting to a Gavron Warning prior to entry of Judgment. The case is one of the few that addresses the distinctions between "temporary support" and "permanent" (judgment) spousal support. Family Code section 3600 governs the court's authority to issue temporary spousal support awards. Family section 4320 governs judgment support awards. The two sections are very different because they serve different public policy purposes, and the support amounts as to each are theoretically also likely to be different (although, funny, oft times the amounts don't change much). The core holding of Tong deals with how to treat severance pay for spousal support purposes, under the somewhat unusual facts as existed there. Still, it also involved a request to terminate support based upon cohabitation, which was denied.

Pertinent to this discussion, the appellate court in Tong v. Samson ruled "The factors listed in section 4320 apply to permanent support orders. Of these, the only factors relevant to temporary orders are the supported spouse's needs and the supporting spouse's ability to pay. [Citation omitted]. To the extent the court required Richard to present evidence on factors included in section 4320 but inapplicable to temporary spousal support, it erred. 'Ability to pay encompasses far more than the income of the spouse from whom temporary support is sought; investments and other assets may be used for... temporary spousal support.... [Citations.]' [emphasis added]."

Hence, 4320 in all its glory does not control how courts arrive at temporary spousal support numbers - which instead, as other Blogs herein describe - are generally addressed using the child support guideline formulas and the legal Xspouse or Dissomaster software.

T.W. Arnold, III, C.F.L.S.


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