Reducing Wife's Spousal Support Because of Income Producing Property

In Buehler v. Buehler (1946) the court held, "The law is settled in California that when a wife is the owner of nonincome producing property, she is not required to have recourse to such property for her support before seeking support from her husband." (Id. at pp. 475-476, citing Farrar v. Farrar, supra, 45 Cal. App.. at p. 586 [same; nor is wife required to "impair the capital of her separate estate"].) In In re Marriage of Martin (1991) the court held that a wife was not required to buy income-generating investments with $ 209,500 she received from her husband's buyout of her share of the community property in order to qualify for support. (Id. at p. 1201.) It was sufficient that the trial court had attributed to the wife an annual income of $ 8,000 from interest she was actually receiving on those funds. (Id. at pp. 1199, 1201.) In support of this holding, the Martin court relied on dictum from In re Marriage of Kennedy, supra, 193 Cal. App. 3d 1633, where the court observed that a trial court has no authority to order a spouse to invest his or her community property share or face loss of support. (Id. at p. 1640.) The Martin court also cited In re Marriage of Kuppinger, supra, 48 Cal. App. 3d 628, which held that a supported spouse need not convert capital assets into income-producing investments in order to qualify for continued support. (Id. at p. 635.) In In re Marriage of Norvall (1987) the court held that the trial court abused its discretion by reducing a wife's spousal support, in part because of income she had begun receiving from a community property asset that was awarded to her in the parties' property settlement. (Id. at p. 1061.) The Norvall court, too, relied on Kuppinger in support of its holding on this point. (Ibid.) In In re Marriage of Rabkin (1986), the court held that, in light of the parties' agreement that sale of the family home would not be a "change of circumstances," the trial court abused its discretion by reducing support for the wife after the house was sold. (Id. at p. 1081.) It was also error to count, as "additional funds available" to the wife, the proceeds from the sale of an undeveloped lot she received in the division of the community property. (Id. at pp. 1081-1082.) The court explained: "The transformation of one nonincome-producing asset into another constitutes no basis for a modification of spousal support." (Id. at p. 1082.) Finally, in Sammut v. Sammut (1980), the court held that income the supported spouse had begun receiving from the sale of stock she was awarded as part of her share of the community property could not be attributed to her for purposes of determining whether an upward modification of spousal support was warranted. (Id. at pp. 563-564.)