A Change in Circumstances May be Based on an Increased Ability to Pay and a Showing That a Spouse’s Needs at the Time of the Separation Were Not Met with the Initial Order

Benjamin and Mary were married in 1953 and separated in 1969 and filed for an Orange County divorce case. The interlocutory judgment of divorce awarded custody of their minor three children to Mary. Benjamin was ordered to pay a total of $300 in monthly child support and $200 spousal support until Mary died, or until further order of the court. In 1987 Mary’s Orange County divorce attorney filed an Order To Show Cause for Modification of the 1969 spousal support. In Mary’s Orange County divorce attorney’s motion, she did not request a specified amount and did not state a changed circumstance. However, her Orange County divorce lawyer did maintain that Benjamin’s income had increased substantially, and Benjamin stipulated that he could pay additional support. Benjamin sought termination of his spousal support obligation. Benjamin’s Orange County divorce attorney asserted Mary’s income alone met her needs and 18 years had elapsed since the divorce in which she could have obtained an education, training, and work experience to make her self-sufficient. The Orange County divorce court determined that the original order was to continue until either person died or remarried. The Orange County divorce court also found that since Benjamin’s income had increased and that such an increase was a change in circumstances. He found that the original $200 order was now inadequate, and a significant financial benefit had accrued to the husband because there hadn’t been a request for a support increase. The Orange County divorce court thus ordered the support to increase from $200 to $750 a month.

A spousal support order will not be set aside on appeal without a clear showing of an abuse of discretion. However, the Court of Appeal found that the Orange County divorce court “is without authority to modify an order for spousal support unless there has been a material change in circumstances subsequent to the last prior order.” In re Marriage of Kuppinger (1975) 48 Cal.App.3d 628,633. Therefore, the Court of Appeal in Orange County must determine whether a material change of circumstances had occurred warranting the Orange County divorce court’s order. Benjamin stipulated to his increasing inability to pay, but that alone is insufficient. However, “although changed circumstances can be based on increased ability to pay, the supported spouse must also show that his or her needs at the time of separation were never met.” In re Marriage of Hoffmeister (1987) 191 Cal.App.3d 351, 364. Furthermore, the supported spouse must “establish by credible evidence that [the]… standard of living at the time of separation of the parties…was higher than that provided by the prior award…” Ibid.

Here, the Orange County divorce court found that the $200 was inadequate and the change in circumstances had been proven in that the sufficiency of the order as viewed today was inadequate.  As explained in Adams and Sevitch, California Family Law Practice, “changed circumstances can be found on an increased ability to pay, [but] the supported spouse must also show that his or her needs at the of separation were never met. The Orange County divorce court abused its discretion in increasing the spousal support order. Mary’s Orange County divorce attorney sought to increase her spousal support based on Benjamin’s increased income. However, Mary did not prove that her needs at the time of separation were never met.

Furthermore, Benjamin’s Orange County divorce attorney argued that the spousal support should be terminated. He argued Civil Code Section 4806 mandates termination of his obligation to pay spousal support. However, the Orange County divorce court found that Mary’s present income was inadequate. Her financial declaration indicated a net disposable income of $1,766 a month and expenses of $1,224. Moreover, “it has never been held an abuse of discretion [in a long-term marriage] not to terminate jurisdiction over spousal support. In re Marriage of Aufmuth (1979) 89 Cal.App.3d 446, 459. Therefore, the Orange County divorce court did not abuse its discretion by failing to reduce spousal support as requested by Benjamin’s Orange County divorce attorney.

The portion of the judgment increasing spousal support to $750 is reversed, and the Orange County divorce court was ordered to deny Mary’s Orange County divorce attorney’s motion to increase spousal support.

In re Marriage of Hopwood, 214 Cal.App.3d 1604 (1989).