In Re Marriage of Prietsch & Calhoun

190 Cal. App. 3d 645, 235 Cal. Rptr. 587, 1987 Cal. App. LEXIS 1530
CourtCalifornia Court of Appeal
DecidedMarch 24, 1987
DocketA031666
StatusPublished
Cited by42 cases

This text of 190 Cal. App. 3d 645 (In Re Marriage of Prietsch & Calhoun) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Marriage of Prietsch & Calhoun, 190 Cal. App. 3d 645, 235 Cal. Rptr. 587, 1987 Cal. App. LEXIS 1530 (Cal. Ct. App. 1987).

Opinions

[653]*653Opinion

KING, J.

In this case we hold that after a lengthy marriage it is reversible error (1) to modify and terminate spousal support when the income and expenses of the supporting spouse have not changed since the prior order and the needs of the supported spouse continue to outweigh her ability to support herself; (2) to order a substantive stepdown of future spousal support when no evidence has been presented and no determination made by the court that the supported spouse will become more able to meet her financial needs in the future; or, (3) even if the evidence could somehow support a termination of spousal support nine years in the future, for the trial court to give the supporting spouse, without the consent of the supported spouse, the option to pay a lump-sum amount equal to the present value of future payments and obtain an immediate termination of the court’s jurisdiction over the issue of future spousal support.

Jeannette Prietsch appeals from an order granting J. Bryant Calhoun’s motion to modify and terminate spousal support. She contends the court committed reversible error (1) by ordering a termination of jurisdiction over spousal support nine years in the future, or after payment by Calhoun of a lump-sum amount equal to the present value of the future payments, whichever occurred first; and (2) by automatically decreasing the amount of support payments on an annual basis over a nine-year period. We modify the order to correct for legal error and affirm as modified.

I

Facts

The parties were married for 24 years from 1956 until 1980 and have two adult children. During the marriage Calhoun entered and completed medical school. He is an opthalmologist. In 1956, Prietsch received a bachelor’s degree in English literature. From 1966 to 1969, she worked as a systems analyst for Proctor & Gamble. In 1971, she earned a master’s degree in science and mathematics, and in 1976 she earned a master’s degree in theoretical statistics. She also finished her course work for a doctoral degree, but did not complete her thesis. Shortly after separation, she moved to Stockholm, Sweden, and found a job as a computer programmer. In 1982, she began work as a systems analyst for Stockholm Localtrafik (a public transportation system) at a salary of SKR 114.000 (approximately $19,000 in 1982).

The interlocutory judgment of dissolution, entered July 1950, ordered Calhoun to pay Prietsch spousal support of $1,500 per month for five months, then $1,200 per month thereafter, pursuant to stipulation. In [654]*654November 1982, after Prietsch began work as a systems analyst, spousal support was reduced to $600 per month by a stipulated order. Neither order provided for a termination of spousal support, except upon the death or remarriage of Prietsch. In March 1984, Calhoun filed the present motion to modify and terminate spousal support. Prietsch responded with a motion to increase spousal support to $2,000 per month. For the first time, the parties were unable to reach a stipulated resolution of this difficult issue.

After a contested hearing in August 1984, the trial court in its order filed December 6, 1984, found Prietsch’s needs “far outweighed” her ability to be self-supporting, and Calhoun’s financial responsibilities were “well within manageable limits.” No reduction in Calhoun’s income was found to have occurred since the prior order. As a result of these findings, the court increased Prietsch’s spousal support to $900 per month beginning January 1985. However, the court also ordered a substantive stepdown1 which automatically reduced the support amount by $100 a month on an annual basis, terminating spousal support “absolutely and forever” after the payment due December 1, 1993. The court also provided Calhoun with an optional plan where, by paying Prietsch prior to December 31,1984, a cash payment equal to the discounted present value of the future payments ordered, “spousal support would forthwith and forever terminate.”

Calhoun exercised the lump-sum payment option provided by the order in a timely manner. The parties entered into a stipulation placing the money in a trust account with monthly payments paid therefrom to Prietsch, pending the resolution of this appeal.

II

Modification of Spousal Support

Although Prietsch requested a modification of spousal support to $2,000 per month, she does not contest on appeal the increase ordered from $600 to $900 per month. She does contest the court’s order for a substantive step-down, a lump-sum payment, and for termination.

Civil Code section 4801, subdivision (a),2 provides that “[a]ny order [655]*655for support of the other party may be modified or revoked as the court may deem necessary.” Thus, the court has broad discretion in awarding or modifying an award of spousal support, but that discretion is not unlimited. (In re Marriage of Melton (1980) 107 Cal.App.3d 559, 564 [165 Cal.Rptr. 753].) The court is without authority to modify an order for spousal support unless there has been a material change of circumstances subsequent to the last prior order. (In re Marriage of Kuppinger (1975) 48 Cal.App.3d 628, 633 [120 Cal.Rptr. 654].) The court may not be arbitrary; it must exercise its discretion along legal lines, taking into consideration the applicable circumstances of the parties set forth in section 4801, subdivision (a), especially reasonable needs and their financial abilities. “A fortiori, ‘change’ must be based on facts affecting need and ability to pay; a modification based on other considerations is an abuse of discretion.” (Hogoboom & King, Cal. Practice Guide: Family Law 1 (Rutter 1986) § 17:40, italics omitted.) In order to modify the prior order the trial court had to find changes in circumstances had occurred. The November 1982 order was made over two years after Prietsch had moved to Sweden and after she had begun the job she presently holds, so these are not changes in circumstances.

However, the court did find circumstances had changed since the original order, but the changes it found justified increasing Prietsch’s support rather than decreasing or terminating it. Although Prietsch has significant education and employable skills and is not a typical “displaced homemaker,” at the time of the modification hearing the court found she was not able to provide for her own reasonable needs, even with the $600 a month which Calhoun had been paying for spousal support under the then existing order. The court’s increase of spousal support was recognition of that fact. The court found “a significant differential in the parties’ earning ability and financial needs,” and that “[Prietsch’s] needs continue to far outweigh her ability to earn either by direct employment or by reasonable return on investment of her separate property.” Prietsch was found to live “in nominal quarters” below “the style” to which the parties “had become accustomed during the course of the marriage,” while Calhoun lived “in substantially better quarters” than those which the parties “had been accustomed to during the course of their marriage.” His quarters were “basically provided by [Calhoun’s] new wife.” Finally, the court found Calhoun’s income “had not appreciably declined” and his claim of anticipated reduction of income was found to be “speculative.”

Thus, the court’s findings fully support the increase in spousal support for Prietsch from $600 to $900.

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Cite This Page — Counsel Stack

Bluebook (online)
190 Cal. App. 3d 645, 235 Cal. Rptr. 587, 1987 Cal. App. LEXIS 1530, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-prietsch-calhoun-calctapp-1987.