A Permanent Order is to be Based Upon Circumstances Existing at Trial. A Change of Circumstances Occurring Between the Time of the Pendente Lite Order and the Trial is Irrelevant to a Determination of the Amount of Spousal Support

Husband and Wife separated in 1978 after a 32-year marriage. At trial, the parties stipulated to all issues except spousal support and attorney’s fees. The Orange County divorce court issued its memorandum of intended decision on December 9, 1981. Husband’s Orange County divorce attorney filed a request for findings of facts and conclusions of law on December 10, 1981. On January 20, 1982, the Orange County divorce court issued its judgment without the required findings of fact and conclusions of law. Husband’s Orange County divorce attorney filed a Notice of Appeal from this judgment on January 2, 1982, and on February 1, 1982, the Orange County divorce court granted an ex parte motion to strike the judgment, ordering Wife to submit proposed findings of fact and conclusions of law. On March 18, 1982, a new judgment with findings and conclusions was entered by the Orange County divorce court.

On appeal, Husband’s Orange County divorce attorney argued the January 20, 1982 judgment was void since it was rendered without the required findings. Husband’s Orange County divorce attorney contended the filing of his notice of appeal on January 29, 1982, divested the Orange County divorce court of jurisdiction to proceed in any matter affecting the case. Witkin opines that a Orange County divorce court is deprived of jurisdiction when an appeal of a valid judgment is perfected, (6 Witkin, Cal.Procedure (2d ed. 1971) Appeal §4, p. 4021.) However, Husband’s Orange County divorce attorney failed to consider that “a wholly void judgment or order may… be disregarded by the parties and the Orange County divorce court, and may be set aside by the Orange County divorce court on its motion through an appeal therefrom is pending.” (1 Witkin, Cal.Procedure (2d ed. 1971) Jurisdiction, § 218, p. 751.) Additionally, Husband’s Orange County divorce attorney relies on In re Marriage of Davis (1983) 141 Cal.App.3d 71. In Davis, the trial judge attempted to correct, by amendment, a judgment entered without the required findings. Here, however, the Orange County divorce court vacated the void judgment, and prior to the entry of the judgment, issued the required findings of fact and conclusions of law. Therefore, the March 18, 1982 judgment is valid.

Additionally, Husband’s Orange County divorce attorney contended that the Orange County divorce court abused its discretion in awarding spousal support of $3,500 a month since there was no showing of changed circumstances from the time of the pendent lite award of $2,000 a month and income from Wife’s estate was sufficient for her support. However, there are fundamental differences in the functions and purposes of pendent lite support and permanent support orders. The court, in making each award, is governed by different authority. The temporary support award is usually obtained soon after the filing of the petition and before any final determination on the various issues in the dissolution. It is the purpose to maintain the living conditions and standards of the parties as closely as possible to the status quo, pending trial and the division of assets and obligations of the parties. The effect of a temporary order is governed by Civil Code section 4357, which precludes consideration of the pendente lite order at the hearing on the permanent order. The permanent order, which is determined de novo, is to be based upon the circumstances from the time to the pendente lite order is irrelevant to a determination of the amount of support which is just and reasonable at the time. Thus, the Orange County divorce court did not err in increasing the permanent spousal support order from the amount previously ordered without showing changed circumstances.

Additionally, Husband’s Orange County divorce attorney argued the spousal support order violated Civil Code section 4806. Civil Code section 4806 is applicable only when the supported spouse’s income is sufficient to meet that spouse’s needs, which was not the case here. The Orange County divorce court also found Husband had a total gross annual income in excess of $200,000 per year and had the ability to pay $3,500 per month in spousal support without impacting his separate estate. Husband’s Orange County divorce attorney relied on Dallman v. Dallman (1959) 170 Cal.App.2d 729 and In re Cosgrove (1972) 27 Cal.App.3d 424 to support his contention that Civil Code section 4806 precludes spousal support award in this instance. The evidence in Dallman showed the husband did not have the ability to pay the designated amount of support and there was no testimony or other evidence introduced as to wife’s needs; therefore, it was an error to find her separate estate insufficient for her proper support. Here, there is substantial evidence of Wife’s needs, and the court specifically found her monthly income did not meet her monthly expenses. Further, the Orange County divorce court found Husband was well able to pay $3,500 per month for support and maintenance of petitioner. Furthermore, Husband’s Orange County divorce attorney’s reliance on In re Marriage of Cosgrove is also misplaced. In Cosgrove, the wife was denied spousal support, not because she possessed a substantial separate estate but because the evidence showed the income from her property approximated her living expenses. Here, the Orange County divorce court found Wife’s expenses were higher than her income, and she was not capable of gainful employment.

Lastly, Husband’s Orange County divorce attorney alleged Wife’s needs of over $13,000 a month are excessive, and her estate of well over $3 million should, as a matter of law, produce sufficient income to satisfy her needs. The Orange County divorce court made proper findings, taking into consideration all factors set forth in Civil Code section 4801, including Wife’s needs, the lifestyle to which she had become accustomed, and Husband’s ability to pay. The Orange County divorce court, therefore, did not abuse its discretion in finding, under the circumstances as then presented, that Wife needs additional support, notwithstanding an estate of over $3 million. Therefore, the judgment of the Orange County divorce court was affirmed.

In re Marriage of McNaughton, 145 Cal.App.3d 845 (1983).