Recent Case Law Indicates Alimony is Modifiable Upward Even Though MSA said Zero.
In the recent unpublished case of Marriage of Rand (District 4, Division 1, October 17, 2013), the Court of Appeal upheld a family court’s decision to allow an upward modification of spousal support even though the parties’ Marital Settlement Agreement indicated that spousal support would be set to zero after a certain period of time.
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In Rand, the Husband earned over $16,000 per month in gross income. He paid child support and $2400 per month in spousal support to Wife because she was not working. The parties had been married for almost 15 years. In the parties’ Marital Settlement Agreement, Wife agreed to “make her best efforts to finish her academic program in nursing by June 2008 and to be employed by December 2008.” Spousal support was scheduled to be “stepped down” to zero on June 30, 2009 or one month after Wife commences employment, whichever occurred first. Nevertheless, the MSA reserved the court’s jurisdiction to increase support for good cause. Step downs in spousal support are commonly drafted in settlement agreements and are often referred to as Richmond step downs.
About seven months before the target date for Wife to become employed, she did become employed as a registered nurse. Spousal support was automatically set to zero as a result of this employment. However, Wife filed a motion to modify spousal support upward and requested more child support. Wife argued that Husband’s income had increased and her income was only about $5800 compared with over $13,000 per month of monthly expenses. Husband’s income had increased to over $23,000 per month.
“In ordering spousal support, the trial court must consider and weigh all of the circumstances enumerated in [FC § 4320] to the extent they are relevant to the case before it.” (Irmo Cheriton (2001) 92 Cal.App.4th 269, 302.) “Modification of a spousal support order may be made only on a showing of a material change in circumstances after the last order. … The moving party [must show] a material change of circumstances since the last order was made.” (Irmo Tydlaska (2003) 114 Cal.App.4th 572, 575.) ” ‘Change of circumstances’ means a reduction or increase in the supporting spouse’s ability to pay and/or an increase or decrease in the supported spouse’s needs. It includes all factors affecting need and the ability to pay.” (Irmo West (2007) 152 Cal.App.4th 240, 246.) The court must reconsider the FC 4320 criteria. (Irmo Shaughnessy (2006) 139 Cal.App.4th 1225, 1235.)
As we discuss on our spousal support page, permanent spousal support is governed by Family Code 4320, which provides about a dozen factors that the court has to consider when ordering alimony. The cited law above means that a party wishing to modify spousal support must show a changed circumstance. If that initial change is shown, the court must then analyze (perhaps again) all the factors listed in Section 4320.
The Court of Appeal did not find any errors made by the family court judge in this case, and therefore did not reverse the decision. It is often difficult to win an appeal because generally an “abuse of discretion” must be shown.
For more information about spousal support, modifications of orders, or marital settlement agreements, call our office today or send us an email. We offer a free, initial consultation.