Kochan v. Kochan
122 Cal. Rptr. 3d 61
Cal. Ct. App.2011Background
- Roman Kochan and Janice Kochan married in July 1982 and separated in November 2006; Janice filed for dissolution in February 2007.
- Roman worked at California State University, Long Beach since 1969 and remained employed as of trial; Janice largely did not work outside the home.
- Family law court initially ordered spousal support based on Roman’s current earnings; later proceedings considered CalPERS/FERP retirement scenarios to impute higher income.
- Trial evidence showed Roman’s CalPERS pension value and the community’s interest, with options like Gillmore order and FERP discussed, affecting future income.
- Bankruptcy proceedings occurred; the court contemplated reallocation of debts and concurrent Gillmore payments tied to Roman’s pension.
- Judgment awarded spousal support and attorney fees, and the court reserved issues about the residence; appellate reversal followed for misapplication of earning capacity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether support should be based on actual income or earning capacity | Kochan argues earning capacity via CalPERS/FERP inflates support. | Kochans claim court cannot impute retirement-based income for support. | Abuse: rely on actual income, not retirement-imputed earning capacity. |
| Whether retirement/FERP considerations improperly pressure retirement | Kochan contends retirement option should be allowed to satisfy support obligations. | Kochans contend retirement could be used to maximize community value. | Retirement-based imputation cannot dictate support level. |
| Whether attorney-fee award should be reconsidered on remand | Fees tied to earning capacity, should reflect actual income post-bankruptcy. | Fees permissible despite bankruptcy, but consider earnings. | Remand to reconsider fees using actual earnings. |
| Whether the court properly addressed fiduciary duties regarding the residence | Janice argues Roman failed to preserve community asset (house) value. | Roman argues evidence insufficient for breach. | Evidence supports breach; remand for damages assessment. |
Key Cases Cited
- In re Marriage of Rosen, 105 Cal.App.4th 808 (Cal. Ct. App. 2002) (discretion in imputing earning capacity in spousal support)
- In Reynolds, 63 Cal.App.4th 1373 (Cal. Ct. App. 1998) (retirement should not be required to pay support; imputed income limits support)
- In Padilla, 38 Cal.App.4th 1212 (Cal. Ct. App. 1995) (employment decisions in child support context; imputed income near best interests)
- Has, 12 Cal.App.4th 1630 (Cal. Ct. App. 1993) (not allowing employment changes to reduce support)
- Gillmore, 29 Cal.3d 419 (Cal. 1981) (Gillmore order—compensate former spouse when pension benefit would be diminished by retirement)
- In re Marriage of Ilas, 12 Cal.App.4th 1630 (Cal. Ct. App. 1993) (guidance on earning capacity versus actual income)
- In re Marriage of Stephenson, 39 Cal.App.4th 71 (Cal. Ct. App. 1995) (statutory criteria balancing in determining spousal support)
- Estate of Leslie, 37 Cal.3d 186 (Cal. 1984) (substantial evidence standard for fiduciary duties in property preservation)