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
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
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)
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.]'
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.