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In re Marraige of Bagshaw3/22/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Frank Bagshaw appeals from that portion of a postjudgment order denying his request to modify or terminate spousal support, and ruling a severance payment of $253,894.50 was the equivalent of approximately 23 months of salary for purposes of his continued support obligations. He contends the court abused its discretion by failing to consider all the criteria required by Family Code section 4320 and finding his severance payment equivalent to almost two years of income. He further argues a supporting spouse who is forced to retire cannot be compelled to work to maintain the same level of spousal support that he was obligated to pay pre-retirement. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Frank and Arlene married in September 1969 and separated in September 1995. In May 1998, they entered into a stipulation for spousal support and division of their property requiring Frank to pay Arlene spousal support of $4,300 per month from his $11,216.33 monthly salary, as well as 25 percent of the gross amount of his "cash incentive awards," "long term incentive awards" and bonuses. At that time, Frank worked as Director of Marketing for a subsidiary of Monsanto. Arlene was employed as a real estate agent and had a total net income for the past 12 months of $1500. On June 7, 1999, the court entered an uncontested judgment for legal separation; the judgment incorporated the parties' stipulation and indicated the orders contained within it would be the court's orders.
In April 2000, Frank filed an order to show cause seeking modification or termination of the June 7, 1999 order as to spousal support, and clarification of certain stock option provisions of the judgment that are not at issue on this appeal. In his supporting declaration, Frank explained he had retired from Monsanto in June of 1999; his currently gross monthly income was $608; and he understood Arlene's gross monthly income was in excess of $2,000. The remainder of his papers addressed only the stock option issues and did not request any further or more specific relief with respect to spousal support.
Arlene responded by attacking Frank's retirement as a "unilateral decision to terminate employment and not seek employment." She also pointed out that in June of 1999, Frank had received a "special cash payment" in the amount of $253,894.50 from Monsanto, as well as $7,247.52 in vacation pay. Arlene asked the court to determine whether those payments were bonuses as defined in the judgment of which she was entitled to 25 percent. Frank later confirmed the $253,894.50 was a severance payment that he had deposited into his credit union account on July 7, 1999.
In June 2000, Arlene filed an order to show cause specifically requesting her share of Frank's severance and vacation payments. Arlene reiterated her claim that she considered both to be a "bonus or cash award" falling under the relevant provisions of the judgment entitling her to 25 percent of those amounts. In response, Frank denied the payments were either bonuses or incentives. As they had in connection with Frank's April 2000 order to show cause, both parties submitted current income and expense declarations. Arlene reported a negative net monthly income, but indicated she anticipated a $4,000 commission the next month, had $210,000 in stocks, bonds and other liquid assets, and $700,000
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