Spousal Support & Vocational Examinations:
Gavron Warnings, Richmond Orders, and the Morrison Rule*
Susan Wise Miller, M.A. Career Counselor/Vocational Expert
California Career Services
Published in the 2013 Los Angeles County Bar Association Family Law Symposium Materials
Gavron Warnings
The Gavron case (1988) 203 Cal.App.3d 705, 711-712, involved a modification of
a spousal support order after a 25-year marriage. Although the trial court granted
the requested modification, the appellate court reversed explaining that the
supported spouse needed to be affirmatively advised of the need to take steps to
become self-supporting or possibly face termination of spousal support. This
admonishment became known as a “Gavron warning,” notifying recipients of
spousal support that they are expected to work towards becoming self-supporting.
This Gavron warning was codified by Family Code Section 4330. In 1999, the
Gavron warning became discretionary.
The Gavron warning states that “each party shall make reasonable good faith
efforts to become self-supporting.” The Gavron warning may lead to a stipulation
or a motion that supported spouse undergo a vocational examination to determine
current and future employability and earning capacity, as well as the duration and
costs of education and training needed.
The intent of the warning is to put the supported spouse on notice that there is an
expectation that they will work towards becoming self-sufficient. The burden then
shifts to supported spouse to give judges good reasons for continuing spousal
support.
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If supported parties want to extend support, they need to demonstrate good faith
and best efforts to become self-supporting and to maximize their earning capacity.
Further, the supported spouse must have been put on notice of that expectation to
become self-sufficient under a Richmond order.
Richmond Orders (Contingent Events and Step-Downs)
Gavron, Richmond, and Schmir (11/16/05, Div7, B175397) present options for the
termination of spousal support after a long-term marriage. A Richmond order
(Marriage of Richmond (1980) 105 Cal.App.3d 352, 356) can provide step-downs,
end the supporting spouse’s obligation to make support payments, and terminate
the trial court’s jurisdiction to award spousal support once the termination date has
passed. Step-down orders can be based on evidence from a vocational examination
report that documents the supported spouse’s current earning capacity and future
earning potential and the length of time needed for training or education as well as
for job search. Unlike an open-ended order on spousal support jurisdiction, a
Richmond order encourages a supported spouse to seek suitable education,
training, and employment. In essence, a Richmond order is an order terminating
spousal support jurisdiction on a specified date unless, before the specified date,
the supported spouse shows the court good cause to modify the amount and/or
duration of support.
A Richmond order expects that with reasonable diligence, the supported party will
be self-supporting by the date set for support payments to end (Marriage of
Berland (1989) 215 Cal.App.3d 1257, 1260). The Richmond order places the
burden on the supported spouse to show why the expectations that the trial judge
had in mind when making the order were not realized (Marriage of Prietsch &
Calhoun (1987) 190 Cal.App.3d 645, 665-666). Typically, the petition to extend
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support must demonstrate that certain assumptions made by the trial judge never
materialized, and these “unrealized expectations” were not the recipient's or
supported spouse’s fault. Thus, Richmond orders make the supported spouse
responsible for providing evidence of why spousal support should continue.
A party who wants to modify or extend support needs to show that there has been a
material change in circumstances. Examples of “change of circumstances” include
retirement at over age 65, the death of the supporting spouse or remarriage of the
supported spouse among others.
The effect of a Richmond order is to put each spouse on notice that the supported
spouse has a specific, reasonable time period based on the circumstances to
become self-supporting. Often, information contained in a vocational examination
report or from testimony of a vocational expert can provide information about the
reasonable time period it will take for the supported spouse to make a meaningful
contribution to his or her own support.
Further, a Richmond order accommodates the public policy goal of self-support or
that both spouses get on with their lives, free from obligations to each other.
Because of this practical policy, courts may consider and grant a Richmond order
with step-down orders, or a contingent future spousal support jurisdiction
termination order.
Richmond orders are more common when a supported spouse is enrolled in an
educational program or is being trained for a career as recommended and
documented in a vocational examination report. In some cases, for good reason,
supported spouses fail to complete anticipated education or training or are unable
to find adequate employment despite significant, diligent efforts to find work. If
this occurs, supported spouses may, prior to the termination date, file a motion to
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modify the amount and/or duration of spousal support awarded in the original
order.
A Recent Case
However, in the recent case of Marriage of Khera & Sameer (2012) (filed from the
6th Dist. on June 19, 2012), the wife in this seventeen year marriage that ended in
2003 filed a request to extend and modify spousal support in 2010. In Khera &
Sameer, there were annual step-down orders that automatically decreased the
spousal support amount of $2,650 at specified intervals from June 1, 2007 until
June 1, 2010 when support would be reduced to zero. Wife in Khera & Sameer
argued that changed circumstances can be grounded on a showing of “unrealized
expectations” if she showed she made reasonable efforts to become self-supporting
(Marriage of Beust (1994) 23 Cal.App.4th 29). Wife blamed her failure to become
self supporting on her declining health and the depressed economy. Wife, a social
worker, explained that despite full-time enrollment in a doctoral program in
clinical psychology, she had not yet met all of the necessary requirements to
graduate. It should be noted that the judgment implied that Wife would enroll in a
Master’s degree in Social Work (MSW). The trial court denied Wife’s motion
saying there was no change in circumstances. In this case, the Court of Appeal
affirmed the trial court’s decision and decided that wife did not provide evidence
of her efforts to obtain employment or become self-supporting as a social worker
and instead enrolled in a Ph.D. program in clinical psychology.
The Morrison Rule
Another major principal in spousal support is the Morrison rule. In the context of
lengthy marriages, a court's failure to expressly reserve jurisdiction to extend
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future support is an appealable abuse of discretion, unless the record clearly
indicates that the supported spouse will be able to adequately meet his or her
financial needs at the date set for expiration of the order (Marriage of Morrison
(1978) 20 Cal. 3d 437, 453). This rule, codified in Family Law C. §4336(a), states,
"Except upon written agreement of the parties to the contrary or a court order
terminating spousal support, the court retains jurisdiction indefinitely in a
proceeding for dissolution of marriage or for legal separation of the parties where
the marriage is of long duration."
The court's statutory duty under §4336(a) to retain spousal support jurisdiction for
"lengthy" marriages does not eliminate the court's discretion to create a date certain
for termination of spousal support at trial or in a post-judgment OSC hearing.
However, based on a showing of changed circumstances of either of the parties
(e.g. the supported spouse is now fully self-supporting) and based on Family Law
C. §4320 spousal support determination factors, many of which are addressed at a
vocational examination and documented in a vocational examination report,
spousal support can either be extended or terminated.
The difference between an order that reduces support to zero or terminates support
and one that terminates jurisdiction is significant (Marriage of Schaffer, (1999) 69
Cal. App.4
th
801). Absent a stipulation to the contrary, the court retains
jurisdiction over spousal support in long-term marriages, but an order terminating
jurisdiction prevents the court from dealing with spousal support issues after the
termination date.
A Recent Case
A recent appellate case, Marriage of Jenkins, an unpublished opinion of District 5
filed January 20, 2012, is a good example of the need for Gavron warnings and
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Richmond orders. In this case, the judgment of dissolution terminating a 21-year
marriage was entered in 1994; in 2009 husband filed an OSC to modify spousal
support. At the time of the post dissolution hearing, wife was working three days
per week, for a total of 31 hours as a nanny and was paid $10 per hour. The trial
court did find a change in circumstances in that wife could work an additional
eight hours per week as a nanny, and they lowered her spousal support. However,
the trial court found that wife’s earning capacity was not sufficient to maintain the
standard of living during the marriage, and husband had the ability to continue
paying spousal support. The trial court did not determine a termination date using
a Richmond order; there was nothing in the judgment or settlement agreement that
called for wife to become self-supporting, and she was never given a Gavron
warning. In fact, the judgment specifically provided that spousal support would
continue until wife’s remarriage or death of one of the parties. The appellate court
affirmed the trial court’s decisions.
Conclusions
Gavron, Richmond, Schmir, and Morrison should all be taken into account in
spousal support awards. Although spousal support cannot be abruptly terminated
(Schmir), especially in a long-term marriage, the appellate court indicated that
public policy regarding spousal support following a long-term marriage has
progressed from one which “entitled some women to life-long alimony as a
condition of the marital contract of support to one that entitles either spouse to
post-dissolution support for only so long as is necessary to become self-
supporting” (Marriage of Pendleton & Fireman (2000) 24, Cal.4
th
39, 53).
However, in Schmir the court indicated that along with this change in attitude
about spousal support came the judicial recognition that before spousal support can
be terminated or reduced, the supported spouse must be given fair notice of the
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expectation of some self-sufficiency and a reasonable opportunity to achieve such
goals.
The vocational examination in Family Law can strengthen the Gavron warning in
providing fair notice of the expectation for a supported spouse to work towards
becoming self-sufficient. Further, the vocational examination report documents
the ability of and employment opportunities for a supported spouse. A vocational
examination report typically provides a roadmap and resources for supported
spouses that include the duration and costs of education and training options to
enhance current and future employability and earning capacity.
*With thanks to Thurman W. Arnold, CFLS and Seth Kramer, CFLS, as well as Aaron Dishon and Douglas
Hatherley at Dishon & Block