IN RE MARRIAGE OF HOLMGREN

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Docket Number

Docket No. 38054.

Attorney(S)

COUNSEL Mary J. Holmgren, in pro. per., for Appellant. Roy A. Sharff for Respondent.

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Smart Summary

Factual and Procedural Background

Mary J. Holmgren ("wife") and Donald N. Holmgren ("husband") were married on November 19, 1949, and separated in June 1970. They have two children, one of whom resides with the wife. At trial, the wife was 48 years old, unemployed, with little apparent income, considerable debts, and suffering from physical ailments and psychiatric care. Since separation, she pursued part-time education aiming to complete junior college. The husband is employed at a brewery, earning a gross monthly income of $1,178 plus a $59 disability pension. Community property included a union pension, life insurance policies, and a house valued at $44,000 with a community equity of $39,883. The husband waived interests in household furnishings and certain life insurance policies. The trial court issued a marital dissolution decree, including spousal support terminating in 1980 and an order for sale of the marital home. The wife appealed portions of this decree.

Legal Issues Presented

Whether the trial court abused its discretion by not reserving jurisdiction to modify spousal support payments beyond May 1, 1980.
Whether the wife should be awarded the marital home instead of ordering its sale.
Whether the wife is entitled to attorney's fees and costs incurred at trial and on appeal.

Arguments of the Parties

Appellant's Arguments (Wife)

The trial court abused its discretion by not reserving jurisdiction to modify spousal support payments after 1980, especially given her ill health, middle age, unemployment, and lack of work experience.
The wife contends she should receive the marital home as her only "real security" and that selling it would be unreasonable and cause financial loss.
The wife requests $407 in attorney's fees and costs, arguing she cannot pay these fees while the husband is financially able to contribute.

Respondent's Arguments (Husband)

The opinion does not contain a detailed account of the respondent's legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
In re Marriage of Rosan (1972) 24 Cal.App.3d 885	Support for the proposition that terminating spousal support without reserving jurisdiction to extend it may be an abuse of discretion when the wife's ability to support herself is uncertain.	The court cited Rosan to highlight that the trial court's termination of support without reservation of jurisdiction could be improper given the wife's uncertain ability to become self-supporting.
In re Marriage of Dennis (1973) 35 Cal.App.3d 279	Endorses retention of jurisdiction to modify spousal support after lengthy marriages where future difficulties may prevent self-support, placing burden on party seeking termination.	The court relied on Dennis to conclude that the trial court lacked assurance the wife could support herself after the support termination date and thus should retain jurisdiction.
In re Marriage of Lopez (1974) 38 Cal.App.3d 93	Discretionary authority of the court to award attorney's fees and costs in divorce proceedings, not to be reversed absent abuse of discretion.	The court referred to Lopez to support that denial of attorney's fees to a wife unable to pay, when the husband can pay and the case has merit, constitutes error.
Norris v. Norris (1942) 50 Cal.App.2d 726	Supports awarding attorney's fees and costs to a spouse without adequate funds when the other spouse can pay and the proceedings have substantial merit.	The court cited Norris as analogous authority reinforcing the principle that denial of fees under such circumstances is erroneous.

Court's Reasoning and Analysis

The court analyzed the wife's circumstances—her age, health, educational efforts, lack of recent work experience, and financial situation—finding uncertainty regarding her ability to support herself by the time spousal support was set to terminate in 1980. Citing Rosan and Dennis, the court emphasized that after a lengthy marriage, courts should generally retain jurisdiction to modify spousal support unless the party seeking termination justifies it. The trial court's failure to reserve jurisdiction was deemed an abuse of discretion due to lack of assurance the wife could be self-supporting.

Regarding the marital home, the court held that Civil Code section 4800 mandates equal division of community property. Since the wife could not afford to buy out the husband's share, sale of the house was necessary to effectuate an equal division. The court rejected the wife's claim that sale would cause hardship, noting she would receive a substantial sum from the proceeds.

On attorney's fees, the court noted the wife lacked funds to pay fees while the husband appeared capable. The trial court erred in failing to rule on her request. Under Civil Code section 4370 and relevant precedents, the court must consider awarding fees when the spouse cannot afford them, the other can pay, and the case has merit.

Holding and Implications

The court affirmed the portions of the decree dividing the community property, including the order to sell the marital home.

The court reversed the portions of the decree concerning the termination of spousal support and directed the trial court to reconsider the termination after allowing additional evidence. The trial court was also directed to rule on the wife's application for attorney's fees and costs.

The decision directly affects the parties by requiring reconsideration of spousal support and attorney's fees but does not establish new precedent beyond applying existing law. It underscores the importance of retaining jurisdiction over spousal support in cases of uncertain self-support ability and clarifies the necessity of property sale when equitable division cannot be otherwise achieved.

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In re the Marriage of MARY J. and DONALD N. HOLMGREN. MARY J. HOLMGREN, Appellant, v. DONALD N. HOLMGREN, Respondent.

OPINION THE COURT.

Before Caldecott, P.J., Christian, J., and Emerson, J.[†]
[†] Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.

Mary J. Holmgren (hereinafter "wife") appeals from portions of a decree of marital dissolution.

The parties were married on November 19, 1949, and separated in June 1970. They have two children, one of whom resides with the wife.

At the time of trial the wife's age was 48. She had no occupation, little apparent income and considerable debts. She testified that she suffered from several physical ailments and was also under the care of a psychiatrist. Since 1970 she has been studying as a part-time student, receiving a high school diploma and taking college-level courses. She estimated that she would require at least two and a half years to complete junior college. Shortly after the separation in 1970 the wife sought work through an employment agency; it was recommended that she continue her education. She had apparently made no other efforts aimed at employment, believing that without additional education she would be unable to find "suitable" work.

The husband is a brewery employee, earning a gross monthly income of $1,178 with $334 in monthly deductions; he also receives a monthly $59 government disability pension.

The community property includes a union pension trust valued at $1,344, two life insurance policies — one on the wife's life with a surrender value of $617 and one on the husband's life with a surrender value of $3,825 — and a house valued at $44,000 in which the community equity is $39,883. The husband waived any interest in household furnishing and in life insurance policies on each of his children.

The wife appears to contend in a brief prepared in propria persona that the trial court abused its discretion in not reserving jurisdiction to modify its order regarding spousal support payments after 1980. The interlocutory judgment provides that the husband make monthly payments of $150 until May 1, 1980, whereupon the obligation of support will terminate. Under Civil Code section 4801, the trial court would have no jurisdiction to extend or modify such payments beyond that time.

The wife's claim to modifiable support after 1980 is raised in the context of her ill health, middle age, unemployment, and lack of past work experience. In In re Marriage of Rosan (1972) 24 Cal.App.3d 885, 897 [ 101 Cal.Rptr. 295], the court reasoned: "Based on the evidence before the court, the real ability of Wife to support herself is completely unknown and a matter of speculation. Considering her lack of experience and training and the many years she has been out of the labor market, the ability of Wife to support herself on a standard approaching the customary living standard of the parties is uncertain. By making an order terminating all spousal support at the end of three years without reserving jurisdiction to extend the period, the trial court put it out of its power to provide any support whatever for Wife after three years even if it should prove after maximum effort on her part she is unable to support herself in a reasonable fashion. (Civ. Code, § 4801, subd. (e).) Under the circumstances of this case that was an abuse of discretion." Rosan involved a husband whose income was somewhat higher than in the present case.

In re Marriage of Dennis (1973) 35 Cal.App.3d 279 [ 110 Cal.Rptr. 619], involves a factual situation strikingly similar to that of the present case in respect to the length of marriage, the age of the wife, value of the community property and the income of the husband. In Dennis, the wife had no recent work experience, displayed an unwillingness to work and suffered from an eye condition that affected her ability to support herself. Evaluating all these factors, the court held that it was "possible that difficulties not contemplated at this time will frustrate even a good faith attempt by the wife to become wholly or partially self-supporting." ( In re Marriage of Dennis, supra, at p. 285.) (1) The court went on to state that "after a lengthy marriage a retention of jurisdiction to modify spousal support should be the norm and that the burden of justification is on the party seeking termination." ( Id., p. 285.) Here the burden is not met; the court had no assurance that at the end of the five-year period the wife would, with reasonable effort, be able to support herself.

(2) The wife contends that she should receive the marital home since it is her only "real security" and that a sale of it is unreasonable under the circumstances and would result in "nothing but loss."

Here the community property consists primarily of the house. The interlocutory judgment directs that the house be sold on June 1, 1977, and that the net proceeds be divided equally between the husband and the wife after adjustment for an equal division of the other community property.

Subdivision (a) of Civil Code section 4800 requires the equal division of community property; subdivision (b) permits the award of "any asset to one party on such conditions as [the court] deems proper to effect a substantially equal division of the property." In the present case the award of the house to the wife would result in a grossly unequal division of the community property.

Here, the wife is financially unable to purchase the husband's share of the house and thus its sale is necessary to divide the property. Contrary to the wife's claim, the sale of the house will not cause hardship since the apportionment of the proceeds, to equalize the parties' shares of the community, will produce for her a substantial sum. It is clear that a court's power under Civil Code section 4800 must include the power to order the sale of the parties' residence when it constitutes the major portion of the community property and neither party is in a position to purchase the share of the other.

(3) The wife argues that she should receive $407 in attorney's fees and costs incurred at trial and on appeal. In May 1970, the wife first requested an order for attorney's fees and court costs; the court reserved the matter until time of trial. At trial, the wife testified that she had dismissed her attorneys but that she owed $105 in fees; she requested that the court order her husband to pay this amount. She appears unable to pay these fees or other legal costs while her husband seems capable of contributing to the payment of such expenses. The trial court failed to decide the issue of her entitlement to fees or costs.

Civil Code section 4370 authorizes a court, in divorce proceedings, to order payment of costs and fees "reasonably necessary" to maintain or defend proceedings before or after judgment; application for an order for costs and fees "may be made without notice by an oral motion in open court." The award of attorney's fees and costs is a matter for the discretion of the court which will not be reversed without a clear showing of abuse. ( In re Marriage of Lopez (1974) 38 Cal.App.3d 93, 113 [ 113 Cal.Rptr. 58].) But where the wife has inadequate funds to maintain the case in the trial court or take an appeal, the husband is able to pay a reasonable sum, and neither the initial proceeding nor the appeal are without substantial merit, the trial court commits error in denying any allowance for fees and costs. (Cf. Norris v. Norris (1942) 50 Cal.App.2d 726, 735 [ 123 P.2d 847].)

The portions of the decree dividing the community property are affirmed. The other portions of the decree which are appealed from are reversed with directions to reconsider the termination of spousal support, after taking such additional evidence as either party may present. The court will also rule on wife's application for counsel fees.

A petition for a rehearing was denied August 5, 1976, and appellant's petition for a hearing by the Supreme Court was denied September 3, 1976.