"Alimony is like buying hay for a dead horse."- Groucho Marx
Life happens. Circumstances change. Courts are aware of this and the law contemplates that even after an order for spousal support is made if the circumstances change sufficiently, the court may need to modify or terminate the order. This article addresses the law on what constitutes a change in “earning capacity” when a party seeks a modification of a spousal support order.
Family Code section 3651, subdivision (a), provides, in relevant part, that “a support order may be modified or terminated at any time as the court determines to be necessary.” It is well established that “ ‘[m]odification of spousal support, even if the prior amount is established by agreement, requires a material change of circumstances since the last order. [Citations.]’ [Citation.]” (In re Marriage of Khera and Sameer (2012) 206 Cal.App.4th 1467, 1475 (Khera).) Therefore, “ ‘[a] motion for modification of spousal support may only be granted if there has been a material change of circumstances since the last order. [Citation.] Otherwise, dissolution cases would have no finality and unhappy former spouses could bring repeated actions for modification with no burden of showing a justification to change the order. Litigants “ ‘are entitled to attempt, with some degree of certainty, to reorder their finances and life style [sic] in reliance upon the finality of the decree.’ ” [Citation.]
Absent a change of circumstances, a motion for modification is nothing more than an impermissible collateral attack on a prior final order. [Citation.]’ [Citation.]” (Khera, supra, 206 Cal.App.4th at p. 1479.)
A material 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 ability to pay.” (In re Marriage of West (2007) 152 Cal.App.4th 240, 246.) The moving party has the burden of showing a material change of circumstances since the last order was made.
“[F]or purposes of determining support, ‘earning capacity’ represents the income the spouse is reasonably capable of earning based upon the spouse’s age, health, education, marketable skills, employment history, and the availability of employment opportunities.” (In re Marriage of Simpson (1992) 4 Cal.4th 225, 234.)
Family Code section 4320 states in pertinent part: "In ordering spousal support under this part, the court shall consider all of the following circumstances: "(a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
"(1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment. "
(2) The extent to which the supported party's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.”
Many spousal support orders contain a Gavron warning. The court in In re Marriage of Gavron (1988) 203 Cal.App.3d 705 (Gavron) states: “ ‘[T]he Legislature intended that all supported spouses who were able to do so should seek employment. It also appears the Legislature expected that courts would issue orders encouraging these spouses to seek employment and to work toward becoming self supporting.’ [Citations.]” (Id. at p. 711.)
Here are some examples from previous cases regarding how courts have resolved whether the moving party met the burden of establishing that earning capacity has changed to modify the spousal support order:
(1) . Passage of time when this is not addressed in the settlement agreement. “Although the passage of time may be related to a change in circumstances, it is not alone a sufficient basis for modification. [Citation.]”(In re Marriage of Gavron (1988) 203 Cal.App.3d 709, 710.) (See, e.g., In re Marriage of Jones (1990) 222 Cal.App.3d 505, 509 [marital settlement agreement provided for specific support payments for identified time periods].)
(2) The moving party must support the request for modification with evidence, not speculation. An allegation of changed earning capacity must be supported by evidence, not speculation. “ ‘[S]peculation or conjecture alone is not substantial evidence.’ [Citation.]” (In re Marriage of Burwell (2013) 221 Cal.App.4th 1, 25, fn. 21.)
(3) When the court orders a spouse to be retrained and the party fails to make a reasonable effort to get training this may be sufficient to establish a changed circumstance. In In re Marriage of Shaughnessy (2006) 139 Cal.App. 4th 1225, the trial court issued a spousal support order that specified that the wife “needs to be retrained and obtain computer skills,” based on the court’s findings that she did not possess marketable skills and had been employed as a florist during the marriage. (Id. at p. 1232.) The trial court granted the husband’s motion for a downward modification of spousal support because the evidence showed a change of circumstances justifying modification. Specifically, the court found that the wife “had done little, if anything, to obtain retraining to increase her income, and that she had not otherwise been diligent in attempting to become self-supporting.” (Id. at p. 1240.)
(4) Evidence by a vocational expert may provide sufficient evidence of changed earning capacity.
A vocational expert’s evaluation of the party’s earning capacity can provide sufficient evidence of an earning capacity change. (See, e.g., In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 212 [vocational examination report].) These are only a few examples. But I hope these have helped you to t;hink about the evidence you will need to provide the court to establish a change in “earning capacity.”
In most cases, discovery will need to be conducted and in many cases a vocational expert may be needed to support an order for modification of spousal support or to contest the opposing party’s request for such an order. This is an area where an experienced Family Law attorney can be of great assistance to you. Good luck.
copyright © 2016 Christine Esser
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