INTRODUCTION
I provide the court with documentation and underlining case law to terminate spousal support based on bad faith on the part of the Petitioner. Beyond bad faith, since my original declaration was submitted, Petitioner has displayed contempt in the form of battery upon the person serving her with documents regarding this case. Charges have been filed and arrest is pending.
BRIEF SUMMARY OF TIMELINE FOR SUPPORT
Although spousal support was not officially ordered until September 21, 2012, a bifurcated marital dissolution had been previously granted on November 9, 2011 and I paid voluntary spousal support and 100% of community obligations since our official separation in 2008.
This voluntary support terminated when Petitioner failed to hold up her end of an agreement we had regarding divorce upon mutual agreement in Moscow, where we were married. The interim between voluntary and ordered payments was 5 months, so in essence, I have been paying spousal support since 2008. We were married a total of 16 years before Petitioner insisted that I move out of our bedroom.
I reiterate these dates to summarize for this court the actual time-line of events outside of what the official calendar shows. I emphasize that timing in this case is of essence since each year Petitioner fails to exercise substantial efforts towards self-sufficiency, the more chance she has of making herself “permanently disabled”[1] as she stated at hearing on September 7, 2012.
Left to her own inertia, Petitioner will continue applying the least amount of effort and later argue that her future advanced age makes her unable to compete in the marketplace or to seek remarriage and rely on status quo.
Additional Facts in support of Termination of Spousal Support
Legal References in Support of Termination:
1. In re Marriage of Shaughnessy (2006) 139 Cal.App.4th 1225, 43 Cal.Rptr.3d 642
Spousal support termination date properly set 3 years after original order after lengthy marriage due to changed circumstances.
The standard rule that modifications in support orders may only be granted if there has been a material change of circumstances since the last order was not designed to circumvent the goal that supported spouses become self-supporting within a reasonable period of time. In this case the initial spousal support award was premised, in part, on an expectation that Wife would obtain retraining in order to increase her income and become self-supporting.
However, by three years later Wife had done little, if anything, to obtain retraining to increase her income, and had not otherwise been diligent in attempting to become self-supporting. W’s “failure to diligently pursue retraining in order to attempt to become self-supporting constituted a change in circumstances justifying a modification of the spousal support order.”
Argument applicable to this case:
In our case, the Petitioner has had since 2007[2] to prepare herself for the work market and to take advantage of the generous support from me – (prior to orders, $43,291.33, much of which court considered a gift). Her cut-and-paste Craigslist reports[3] citing one job search per month exemplify a lack of due diligence and leaves me assuming the risk of her lethargy and paying for her contempt. Thus, her failure to seek work only adds to my hardship[4] the court recognizes.
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MARRIAGE OF Ida and Benson SHAFFER Ida Schaffer, Appellant, v. Benson Schaffer, Respondent. No. G018552. Court of Appeal, Fourth District, Division 3, California. Decided: January 29, 1999 wherein the court was perceptive enough that Ida was abusing the system.
In this case Ida continually sought work in a field the trial court had specifically steered her away from which allowed her continual 3 year extensions for spousal support because of unemployment. The court recognized that this was in part due to the fact that the California Family Judges rotate out of the system regularly and that no one judge had been able to clearly see the entire case for what it was.
But, like a large impressionist painting you have to stand a good distance away from to fully appreciate, the big picture showed a marked reluctance on Ida's part to become genuinely self-supporting by pursuing employment more suited to her temperament. The trial judge here was perceptive enough to realize what was going on and call a halt to the indefinite extensions. He realized that Ida had frittered away (“wasted” was his precise word) at least 10 years during which she might have trained for alternative employment. And on top of that she quit the one job she did obtain in her chosen field and managed to lose another. The record thus fully supports the trial judge's decision and comes nowhere close to an abuse of discretion
Argument applicable to this case:
The court in our case states in regards to Petitioner, “with a good faith effort she will be able to significantly contribute to her needs in the next two years...”[5]
This statement exemplifies how this court was able to see the whole picture and how the judge was perceptive enough to anticipate the potential for abuse by Petitioner, thus defining specific pivotal criteria she must meet.
The court defines the result of good faith effort as:
the ability to significantly contribute to her needs,
and defines the period of time where these efforts will be apparent as
two years.
There is no ambiguity in the court’s use of the word, “will” instead of should. Judge Albers specifically and intentionally uses this word to encourage the court’s broad discretion and understanding when revisiting this case in the future.
Petitioner, by not acting in good faith[6], does not meet the minimal test delineated for her in this order.
3. Family Code Section 4320 (n) Any other factors the court determines are just and equitable.
Equitable considerations are the most significant factor in these cases. The Legislature and the appellate courts specify guidelines which must be considered by trial courts in deciding spousal support issues, but in the final analysis trial courts must possess broad discretion to decide the applicability and weight of these guidelines as they apply to the facts and equities of each case.” [7]
I implore the court to consider the term “equitable” outside the scope of monetary concerns.
On one hand, the Petitioner has had substantial time to pursue her art and other interests while I took a job outside my main occupation as an artist and musician.
On the other hand, after more than fourteen years, I feel stuck and suffer burn-out. I need to take some time to pursue my own artistic interests—music and writing. I came to this country as a professional musician and eventually took an engineering job at Digidesign in order to support both myself and my wife. Petitioner resented work and continually found excuses to avoid contribution.
My job as an engineer is dry and lacks soul-feeding. Engineering has become a source of aggravation as downsizing and outsourcing work continues quarterly. Digidesign, which was mainly concerned with audio technology and excellence and had once been a thriving company, has been swallowed up by AVID Technology, a corporation whose main concern is profit. Salary freezes have been in place and the corporate environment has eroded and diminished my enjoyment of this work.
In reference to the concept of equity, Time=Money: I sincerely need time and a break. Petitioner’s status quo attitude denigrates my effort. Her lack of efforts towards independence keeps me stuck in an unhealthy and diminishing situation and in addition to the financial hardship already determined. The time for Petitioner to contribute to her own well-being has long passed.
Other Factors
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San Francisco Job Market is Healthy
"The job market in the Bay Area is on fire," said Christopher Thornberg, a partner with Beacon Economics. Bay Area job market surges in October and the boom is likely to continue for two years[8]
“ San Francisco ranks 6 in the hottest job markets in the country for 2015. “[9]
According to all sources, San Francisco has one of the most robust job markets in the country. While Petitioner claims she has to compete for jobs with 20-year-olds, today’s job market allows for independent work from home in the fields of Graphic Design where the Petitioner has strong skills and where self-education is readily available. This kind of work is blind to age.
Petitioner also has clothing design and highly-skilled seamstress skills and she could easily be making between 2 and $5k a month designing and making one wedding gown. If you look at her resume, she worked for the Bolshoi Ballet, surely, that puts her in a position to cast a wide net for custom clothing design.
There is no shortage of money in the wedding event industry in the bay area. The median salary for a photographer is $68,006 according to Salary.com.
It does not matter how Petitioner makes her living, as long as she is making a living. Occupation will go far in fighting off the unsubstantiated insomnia and depression she claims to have. If she would only face up to her biggest fear—work, she could realize the benefits that come along with it including independence, dignity and lack of time to imagine maladies that allegedly keep her from being employed.
There is no reason Petitioner should be unemployed after nearly 8 years since it was clear she would have to become self-supporting at some time. Her own sense of entitlement is the only true barrier to her employment.
Last year in this same court room, she claimed she wanted her own business, that she had something in the works with an old teacher and yet, we have not seen a business plan, we have not seen any evidence that she acts towards independence in any way.
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Extenuating Circumstances
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BATTERY--On proper service to the Petitioner (2/15/2015), the Petitioner hit my wife, Catherine Conlin in the head. A police report for battery was filed (150-146-364) and charges are pending. Attached are Petitioner’s own words in e-mail form[10], admitting that she hit Catherine in the head. This violent and forceful act alone should demonstrate bad faith.
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EVASION OF SERVICE AND REFUSAL TO ACCEPT DOCUMENTS—After the above service on Petitioner regarding this hearing, she admits (in the same e-mail)[11] to leaving the papers where they were delivered and taking the spousal support check from the envelope. Petitioner has a history of evading service as if sticking her head in the sand will make her obligation to become self-supporting disappear. Service for last year’s hearing was impossible as the process server attempted 5 times[12] to deliver papers and thus, the hearing was delayed one month while I figured out how to motivate Petitioner to receive the papers.
This year again, I inquired as to her current mailing address[13] so I could have papers delivered and she refused to give them to me.
3. GREEN CARD--The Petitioner received a Green Card in 2010 based on my hard work. She has lived in this country since 2000 and made no contribution to society. She used me.
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Incorrect Original Assumptions Regarding My Income
In the Finding and Order After Trial, the court makes the assumption that my income will increase 5% per year based on “his past ten year progress.” This assumption has proven to be incorrect, considering my income has only increased 1.6% per year. This is a difference of roughly ($377 ) per month, under the original estimated income. (2 current pay stubs attached)[14]. Last year Avid issued a salary freeze for all employees.
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History of Excuses by Petitioner
Petitioner has a history of excuses that make it convenient for her not to work:
In her own original declaration to Spousal Support hearing, she says she took a job as a highly skilled seamstress and “After 2 weeks of practice there I had a nervous breakdown.”
When she took a job as caregiver, “became the outset for my depression and anxiety disorder.”
When she received her work authorization in 2007, she claims she began experiencing insomnia.
She did not even begin to update her Resume until February of 2014, as she states in her report for that month.[15]
Conclusion
I respectfully ask this court to see the Petitioner’s intentions as they are: Bad faith. Her inaction is actually action out of spite. Weaning Petitioner off of spousal support has done nothing to encourage her to exert any energy to seek work.
I also ask the court to see this case in the big picture: Petitioner always had the opportunity to seek work as I did, to find a company to support her in getting a work authorization before 2007, but when we she was told by one person she should be in New York with her designs (roughly 2001), she decided that she was too good to try to find work in San Francisco and stopped looking, putting the burden all on me. Her own arrogance is what put her in the position she is in today.
I have already surrendered many years of my life to support us both. I have done all the right things and the evidence of my actions speaks for itself as to my integrity.
I need time for myself before I am too old to enjoy my life here that I’ve worked so hard for in America, to pursue my own artistic dreams on my terms, not to be stuck at a dead-end corporate job.
I ask the court to terminate spousal support due to bad faith and inequity. Please make it impossible for Petitioner to continue her abuse of me and her abuse of the system.
I declare under the penalty of perjury under the lawas of the State of California that the foregoing is true and correct.
Date: 03/02/2015
___________________________________________________________ __________________________________________
(TYPE OR PRINT NAME) (SIGNATURE OF PERSON COMPLETING THIS FORM)
[1] Petitioner’s last words to the judge before leaving the court room after the order was issued was, “What happens if I become permanently disabled?”
[2] In 2007, Petitioner received her work authorization card and thus had no obsticles in her way of finding employment. Furthermore, she claims that my insistence that she seek work caused her insomnia.
[3] Exhibit A—Petitioner’s monthly reports since last hearing
[4] Exhibit B---Savouliak v. Baranov, FINDINGS AND ORDER AFTER TRIAL, p.6, line 12, “that contribution will be a hardship for him.
[5] Exhibit—B: Savouliak v. Baranov, FINDINGS AND ORDER AFTER TRIAL, SEPTEMBER 21, 2012, p. 7, line 12
[6] Exhibit—B: Savouliak v. Baranov, FINDINGS AND ORDER AFTER TRIAL, SEPTEMBER 21, 2012, p.6, line 20, “For Petitioner, this means she must use her training and determination to be self-supporting...” and p. 4, line 8, “She needs to spend significant effort on seeking entry level positions in her field of expertise.” p.6, line 26, “For Petitioner, she has the training and apparent talent to be self-supporting in the years to follow.”
[7] http://caselaw.findlaw.com/ca-court-of-appeal/1314212.html#sthash.NmQO8Uv9.dpuf
[8] By George Avalos, San Jose Mercury News Business
[9] WALLET HUB, 2015
[10] Exhibit C--Attached, original e-mail and translation wherein Petitioner admits to hitting my wife in the head.
[11] Exhibit C--Attached, original e-mail and translation wherein Petitioner admits to hitting my wife in the head.
[12] Exhibit D- Attached, copy of process server’s attempts at service to Petitioner
[13] Exhibit E—e-mail correspondence between myself and Petitioner asking for her address and her failure to provide it
[14] Exhibit F--2 current paystubs attached
[15] Exhibit G—March 2014 report for February Job Search Efforts