In re the Marriage of Cook

556 P.2d 707, 27 Or. App. 467, 1976 Ore. App. LEXIS 1476

• Court: Court of Appeals of Oregon
• Decided: November 22, 1976
• Docket: No. 73-0794, CA 6442
• Status: Published

Opinions

SCHWAB, C. J.

Wife appeals from an order modifying the original decree of dissolution to eliminate husband’s spouse support payments.

The marriage was dissolved in March 1974 and the matrimonial assets divided pursuant to the terms of a property settlement agreement executed by the parties and incorporated into the decree. The decree provided in part that husband would be required to pay wife $500 per month support for three years. In August 1975, husband sought modification of this provision on the grounds that wife had remarried and was supported by her new spouse, who earned $20,500 annually. In October 1975, the circuit court denied husband’s request for modification. In March 1976, husband filed a second motion for modification, maintaining that modification of the decree was justified by wife’s remarriage and by the fact that husband had been recently forced to quit his job due to health reasons. In May 1976, the circuit court granted the requested modification and terminated husband’s support obligation.

Modification of the spouse support provision of a dissolution decree is justified whenever there has been a change of circumstances in the financial posture of either party sufficient to warrant the exercise of a court’s equity powers to adjust the terms of the original decree. Abraham v. Abraham, 248 Or 163, 432 P2d 797 (1967). A change in either the ability to pay on the part of the party obligated to pay support or the need the other party has for such support can be sufficient reason for modification. Baker and Baker, 22 Or 555, 540 P2d 388 (1975). In this case, the financial posture of each party has changed substantially since the date the original decree was entered. Wife has remarried and is supported by her present husband sufficiently well to be planning an extended trip to Scotland in the near future when her present spouse takes sabbatical leave from his teaching position. Husband, on the other hand, was forced to quit his employment because of severe depression caused by the nature of his job.¹ His income has consequently dropped from $28,400 annually to $9,000 annually. Husband’s current spouse and child support payments total $9,000 annually. We conclude that wife’s remarriage coupled with the drop in husband’s income factually supports the modification made by the circuit court.

Wife maintains that the fact of her remarriage was considered by the court at the time of the first modification motion and was adjudicated to be insufficient to warrant modification. Thus, wife argues, her remarriage cannot legally be considered as a factor in a subsequent modification proceeding. We do not agree. The current modification motion relies only in part upon wife’s remarriage as a basis for modification. It also relies on the termination of husband’s employment, which occurred subsequent to the resolution of the first modification motion. As stated by the Supreme Court in Greisamer and Greisamer, 276 Or 397, 401, 555 P2d 28 (1976):

"* * * This is not an instance where the plaintiff is seeking to readjudicate a question previously decided; plaintiff is asking only that facts previously considered but which are essential to decide an existing and new dispute, be used as evidence * *

Affirmed. No costs to either party.

1 Wife maintains that husband voluntarily terminated his employment and that a change of circumstances brought about by voluntary actions is not sufficient to warrant modification. See Nelson v. Nelson, 225 Or 257, 357 P2d 536, 89 ALR2d 1 (1960). Husband, however, terminated his employment for health reasons, a decision later concurred in by his psychiatrist. The condition of husband’s health can indeed be the basis for modification. See ORS 107.135(l)(a) and 107.105(l)(c)(C).