The upward mobility concept referenced in the Marriage of Ostler & Smith case relates to the period of time prior to the date of separation
The Ostler & Smith case has been cited for the proposition that "in determining marital standard of living, [it is] proper to look at upward mobility of paying spouse, not average during the marriage. Award not limited by marital standard of living."
However, in Marriage of Ostler & Smith, the Court of Appeal admits that the marital standard of living (which was calculated based on the average of the family's expenses over the seven years prior to the parties' separation) was a "distorted figure" because it gave little or no weight to the family's "upward mobility" that resulted from substantial increases in the husband's earnings, including large annual bonuses, during that time (i.e., during the seven-year period prior to the date of separation). Id., at 48. In other words, the upward mobility concept mentioned by the Court of Appeal was in reference to the period prior to the date of separation.
Where the marital income level is sufficient to sustain the supported spouse at the marital standard, post-separation income should not be considered
It is well-established that where a spousal support award based on the marital income level (i.e., income-based MSOL) is sufficient to sustain the supported spouse at the marital standard of living, there is no occasion to draw upon the supporting spouse's post-separation income.
In Marriage of Weinstein, (1991) 4 Cal.App.4th 555, the appellant argued that the trial court erred in failing to consider respondent's higher post-separation income in setting the amount of spousal support. However, the Court of Appeal held that the trial court was not required to consider respondent's post-separation income in determining the level of appeallant's support and that where an award of spousal support is sufficient to maintain the marital standard of living, "there is no occasion to draw upon post-separation income." Further, the Court of Appeal held that it is appellant's needs which must be examined and not respondent's standard of living due to post-separation separate property earnings.
In Marriage of Ostler & Smith the Spousal Support Order Contained an Automatic Step-Down Provision Reducing All Spousal Support to $1 Per Year in 3
It is extremely important to understand the larger context of the support award in the Marriage of Ostler & Smith case - namely, the wife's right to receive a percentage of husband's future bonus payments as and for additional spousal support terminated after just three (3) years (on a 21 year marriage). The Court of Appeal concluded that the wife's award of a percentage of the husband's bonus was inextricable from the trial court's step-down order of spousal support at the end of three (3) years: "the record reflects that the Court weighed and considered each circumstance required under section 4801, subdivision (a) [predecessor statute to California Family Code ?4320], and the record support the trial court's exercise of discretion. The court's balancing of factors is particularly evident when we consider the award of a percentage of the bonus and the step-down of support in three years." Id., at 50.
The Marital Standard of Living Continues to be the Reference Point Against Which All Other Statutory Spousal Support Factors are Weighed
Spousal support is governed by statute - California Family Code ??4300-4360. In ordering spousal support, the trial court must consider all of the circumstances enumerated in California Family Code ?4320, to the extent they are relevant to the case before it. Marriage of Cheriton (2001) 92 Cal.App.4th 269, 302. The first of the enumerated circumstances, the marital standard of living, is relevant as a reference point against which the other statutory factors are to be weighed. Id.; See also Marriage of Zywiciel (2000) 83 Cal.App.4th 1078, 1081; and, Marriage of Kerr (1999) 77 Cal.App.4th 87, 94.
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