Recent Developments in Family Law
COURT FINDS THAT FORMER WIFE WAS REQUIRED TO SHOW A CHANGE OF CIRCUMSTANCES TO SEEK AN EXTENSION OF A SPOUSAL SUPPORT ORDER WHICH TERMINATED BY ITS OWN TERMS ABSENT A SHOWING BY WIFE OF GOOD CAUSE AS TO WHY THE COURT SHOULD ORDER SPOUSAL SUPPORT TO BE CONTINUED.
In re Marriage of Khera and Sameer (2012) 206 Cal.App.4th 1464.
Husband (H) and wife (W) reached a settlement agreement in their divorce which was incorporated into a final Judgment. H was ordered to pay W spousal support of $2,650 per month, commencing June 1, 2007. There was an annual step-down in H’s support obligation through June 1, 2010. The Judgment provided that on June 1, 2010, “Spousal support will be reduced to zero, unless, before that date, [W] files a motion to have spousal support continued and shows good cause as to why the Court should order spousal support to be continued.” With regard to child care expenses, the Judgment provided that commencing June 1, 2007, “The parties shall each pay one-half of all: (a) Reasonable child care expenses incurred to permit a Party to work; (b) Only through October 30, 2007, reasonable child care expenses incurred to permit [W] to obtain her MSW degree . . .”
On March 24, 2010, W filed an Order to Show Cause seeking a modification of the Judgment’s spousal support provisions. She requested that the court determine the marital standard of living and order an upward modification of support, including a Smith/Ostler obligation. In her declaration, W indicated she was earning $9 per hour as an associate social worker. She was in a clinical psychology doctoral program and only able to work 24 hours per week. She argued no showing of changed circumstances was required due to the fact that the language contained in the Judgment specifically allowed for W to seek modification of the order before June 1, 2010. Alternatively, she argued even if a change of circumstances is required, a modification may be grounded on a showing of unrealized expectations, namely that W was not self-supporting by the termination date of the support. The trial court denied W’s request finding there was insufficient evidence to modify the spousal support prospectively.
APPELLATE COURT DECISION
The District Court of Appeal that serves Santa Clara County (Sixth District) affirmed the trial court’s order. The court explained that a modification of spousal support, even if the prior amount is established by agreement, requires a material change of circumstances since the last order. A material change of circumstances may be in the form of unrealized expectations, however a family law court may not find a change of circumstances in the reconsideration of a circumstance which has not changed since the previous order.
The parties’ Judgment contained an order commonly referred to as a “Richmond order” which is named after the decision of In re Marriage of Richmond (1980) 105 Cal.App.3d 352. These orders provide for contingent termination of spousal support on a specific date unless, before that time, the supported spouse brings a motion to modify for good cause. A Richmond order is normally issued with the expectation that if the supported spouse exercises reasonable diligence, he or she will have become self-supporting by the date set for support payments to end. The effect of a Richmond order is to tell each spouse that the supported spouse has a specified period of time to become self-supporting, after which the obligation of the supporting spouse will cease. A Richmond order psychologically prepares the supported spouse for the time when he or she must be self-supporting. It also places the burden of showing good cause for a change in the order upon the one who is most able to exercise the control necessary to meet the expectations the trial Judge had in making the order.
The Court of Appeal explained the question of reasonable expectations is material, and a failure to realize them may constitute a change of circumstances justifying modification of the order. The clear implication of the Judgment was that, absent unforseen circumstances, W was expected to complete her MSW degree and be able to be fully self-supporting by June 1, 2010. The court noted W’s supporting declaration did not show that she diligently acted to achieve financial self-sufficiency and, despite her reasonable efforts, she had been unable to complete her MSW degree, she had been unable to obtain full time work as a social worker, or she had been unable to find full-time employment at a salary that made her self-supporting. An unrealized expectation of self-support requires a showing that, despite the supported spouse’s reasonable efforts, he or she was unable to support himself or herself. The burden was on W to show reasonable efforts to achieve this objective. W did not present evidence of the marital standard of living or her needs based on that standard. The court noted, in its view, a voluntary decision to pursue a doctoral degree rather than entering the working world full-time does not constitute a material change of circumstances in the context of this case.
As discussed in the appellate court decision, requiring a material change of circumstances since the last order for a modification of that order helps to ensure the policy of the law supporting finality in dissolution cases. Absent such a requirement, dissolution cases could be endless allowing unhappy former spouses to bring repeated actions for modifications of orders with no burden of showing a justification to change the order. In deciding whether to file a request for a modification of an order, the moving party should consider the circumstances at the time the order was made and should review the order for any findings or indication of those circumstances. Absent the ability to prove those circumstances and a material change in those circumstances, a request for a modification of a prior order is likely to be a fruitless effort.