Supported Spouse's Separate Property Case Law In California
Citing Dallman v. Dallman (1959) 170 Cal. App. 2d 729 339 P.2d 636, the majority suggests that the trial courts should look to the "estate as a whole," including the "actual and reasonable income potential from investment assets, as well as their total value." (Maj. opn., ante, at p. 930.)
In relevant part, the Dallman court said the trial court erred when it found that the wife's separate estate of nearly $ 500,000 was not sufficient for her proper support because, "disregarding any income the estate might produce," her separate property would support her at the $ 1,600-per-month claimed need level for more than 25 years. (170 Cal. App. 2d at pp. 735, 737.)
The import of the majority's citation of Dallman is unclear. the quoted language is sheer dictum. (Id. at pp. 736-738 holding that there was no competent proof to support the items of expense claimed by the wife, and that husband clearly did not have the ability to pay even the $ 720 in support ordered by the trial court.)
If it constituted a holding with precedential value, however, it would stand for the proposition that a supported spouse may be required to invade the principal of his or her separate property assets before he or she may be found to qualify for support.
Alternatively, it might mean that a trial court should ascertain the life expectancy of the supported spouse, and divide the value of that spouse's separate estate by the number of years remaining in the spouse's life.
Presumably, if the capital in the separate estate would not be depleted within the supported spouse's expected life span, the trial court should find that the estate is sufficient for the spouse's proper support and, accordingly, deny an initial request for support or terminate any existing support order.
But the majority would go even further than the language quoted from Dallman would suggest, and require the trial court to aggregate the supported spouse's separate property and the community property awarded in the final division of marital property, when assessing the sufficiency of the supported spouse's "separate estate" to provide for his or her "proper support." ( 4322.) (Maj. opn., ante, at p. 930.)
Then, once the value of the aggregated assets has been determined, the majority would have the trial court look to the "totality of the facts" to determine whether the estate is sufficient to provide for his or her proper support. (Maj. opn., ante, at pp. 931-932.)
The majority relies on Biderman, supra, 5 Cal. App. 4th 409, as support for its approach. (Maj. opn., ante, at pp. 930-931.)
The majority states several times that section 4322 references the estate as a whole, not just the income produced by it, and seems to intimate that the trial court should look to both in determining if the supported spouse has a sufficient separate estate. (See maj. opn., ante, at p. 930 "The statute references the estate, not just the income from the estate"; ibid. ". . . the court should look to the estate as a whole, including the actual and reasonable income potential from investments assets, as well as their total value, in resolving the issue of the estate's sufficiency for proper support" (italics added).)
Yet the majority never addresses in what way the total of the estate assets should be considered by the trial court.
The majority provides an accurate synopsis of the facts and procedural history of Biderman, but fails to note that the Biderman court concluded, essentially as a matter of law but without any meaningful analysis, that an estate of $ 350,000 was sufficient to support the permanently disabled husband in that case. (5 Cal. App. 4th at p. 414.)
It is worth passing notice that, in that regard, Biderman has been criticized as "simplistic" by at least one leading family law treatise author. (2 Adams, Cal. Family Law Practice (14th ed. 1999) Spousal Support, N.97.0.5, pp. N-73 to N-74.)