dissenting.
The majority correctly acknowledges the legal standard that wife must satisfy to warrant modification of her spousal support award: a substantial and unanticipated change in economic circumstances. ORS 107.135(2)(a); Thomas and Thomas, 160 Or App 365, 371, 981 P2d 382 (1999). The majority’s resolution of this case, however, is not faithful to that standard. The record does not establish that the degeneration of wife’s back condition has changed her economic circumstances in either a substantial or unanticipated way. Accordingly, I dissent.
*97I begin by setting out the details in the record as to wife’s physical condition at the time of dissolution.1 Wife suffers from a degenerative back condition that is the result of a 1978 car accident. She has lived in chronic pain because of that condition and has been told that nothing can be done to resolve her condition. Wife described her ability to perform income-producing work as “very, very, very limited” since the accident.
Before the parties reached a settlement on spousal support, wife petitioned the court for temporary support. In support of that request, she submitted an affidavit in which she stated the following:
“* * * I am disabled. I have applied for disability with the State of Oregon. I have no other source of income. * * *
“* * * Because I am disabled, my potential income is minimal. * * * If my husband dies, I will have no means of support. I believe my husband should pay me permanent spousal support * *
(Emphasis added.) Relying on that affidavit, the trial court awarded wife temporary spousal support, specifically finding that wife was not then employed and had not been employed for six years before the support award.
After the trial court’s award of temporary spousal support, the parties entered into settlement negotiations on the amount and duration of spousal support. Wife took the position that she was “disabled” as the result of her degenerative back condition and had no income. To establish her disability, she was prepared to offer the expert opinions of three physicians who would have testified that, at that time (i.e., 1993), she was unable to work. According to husband, wife’s *98inability to work was accounted for in arriving at the settlement for support. Significantly, wife did not testify to the contrary nor did she offer any evidence to challenge or contradict husband’s testimony in that regard.
The questions now must be: what has changed and why? In the majority’s view, what has changed is that wife has gone from having some limited ability to work to having none. As for why, the majority finds that wife’s back condition has degenerated in a way that no one expected at the time of the dissolution. With respect, the record not only fails to adequately support the majority’s conclusions in those regards, it affirmatively refutes them.
In determining that wife had some ability to engage in income-producing work at the time of dissolution, the majority relies heavily on wife’s statements at the modification hearing that she hoped to be able to work and that, in her “heart of hearts,” she did not believe that her degenerative back condition would leave her “totally disabled.” 192 Or App at 94. But the majoritys reliance on that testimony in that regard is too selective and requires disregarding evidence that we are not free to disregard. In particular, the evidence is undisputed that, despite wife’s “hopes,” (1) several of wife’s doctors advised her at the time of the dissolution (i.e., in 1993) that she could no longer work due to her degenerative back condition; (2) wife took the position in her affidavit to the court in 1993 that she was disabled to such a degree that, without either government disability payments or her husband’s support payments, she would have “no means of support”; and (3) wife specifically agreed at the time of the hearing in this case that the statements in that 1993 affidavit were true when made and have proved correct. If wife’s statements are to be the source of a conclusion that her condition has changed, then all of her statements must be considered, including her sworn statements in 1993, which should be judicially binding.
The majority also relies on wife’s post-dissolution activities. Specifically, the majority points to wife’s attempt to sell antiques on consignment and the fact that she cared for the parties’ cows at the time of dissolution. 192 Or App at 94 n 5. In that regard, it is worth emphasizing that wife did *99not state in her 1993 affidavit that she could not engage in activity of any kind; she said only that she could not produce income. Time proved her to be correct. Although wife hoped that selling antiques would provide some supplemental income, it did not do so and instead “wound up more of a hobby.” Nor did wife earn, or expect to earn, any income tending the family’s small herd of cows. She took care of the cattle out of necessity — that is, because no one else in the family was available to do so — and despite the considerable pain it caused her. In terms of wife’s abilities to engage in either of those activities, nothing in the record suggests any change. Wife did not claim she could not still attempt to sell antiques on consignment; her point was that no significant income would come from it. Where tending cattle is concerned, wife specifically testified that she could probably still take care of the cattle if the need arose, although it would still cause her pain. The majority’s reliance on those activities is thus misplaced. They were neither income-producing activities nor activities that show a change in wife’s abilities.
Turning to wife’s present condition, the majority accurately notes that wife has suffered two spinal fractures since the dissolution, that wife’s doctors have told her that she is unable to work, and that she now receives total disability payments from the federal government (SSI). But given wife’s condition at the time of dissolution, those changes do not support a conclusion that the deterioration of her back condition has changed her economic circumstances in any way. Although wife has suffered two additional spinal compression fractures since 1993, the advice that wife’s doctors have given her about not working is the same advice they gave her in 1993: she was not physically able to work before, and she is not physically able to work now. In other words, her physical condition has degenerated further, but her inability to engage in income-producing work did not arise for the first time as a result of that further degeneration. As for wife’s federal SSI award, nothing in the record suggests that wife could not have obtained that award in 1993. If anything, the record suggests the contrary. Wife specifically testified that she did not apply for an SSI benefit until her spousal support ran out. When she did apply, she succeeded. Wife was candid in that regard, testifying that she does not like *100accepting SSI benefits because she does not believe that taxpayers should have to support her. If the modification results in a permanent award of spousal support, she intends to discontinue her SSI.
Thus, although the record establishes that wife’s degenerative back condition has continued to degenerate, the record does not support a conclusion that wife’s ability to earn an income has changed as a result. Nor, more importantly, does it establish a substantial change in her ability. The majority finds a substantial change in the difference between the “little or no income” that wife said she could earn in 1993 and the “no income” that she says she can earn now. That is a difference of, at best, semantics, not substance, and even the semantic difference has no real support on this record. The majority all but reads “substantial” out of the test for modifying a spousal support award.
Equally troubling is the majoritys conclusion that any change in wife’s circumstances is unanticipated. By wife’s own admission, the car accident in 1978 resulted in a degenerative back condition from which she has suffered since. Degenerative disease, by definition, progressively worsens over time. Notably, wife presented no medical testimony that her degenerative condition has deteriorated in an unanticipated way. Nor did she testify to that effect. On that point, the record is wholly devoid of evidence.2
In granting the modification, although the trial court made the requisite findings, it appears to have been *101motivated as much or more by its after-the-fact regret that it modified the spousal support when husband became unemployed in 1994: “In retrospect, after listening to the testimony in this case, the Court believes that the Court reduced the spousal support more than it should have been at the time.” The trial court’s concern is hard to fault, and the majority may share it. But a modification may not serve as a mechanism to relitigate an earlier spousal support award. Thomas and Thomas, 181 Or App 128, 134, 45 P3d 954 (2002). Given the lack of evidence of a substantial and unanticipated change in wife’s circumstances, wife’s petition for modification should have been denied.
For those reasons, I dissent.
Deits, C. J., Landau and Haselton, JJ., join in this dissent.As the majority describes, one year after the dissolution husband successfully obtained a modification of the spousal support amount because he became unemployed. As a result, the claimed change of circumstances in this case should be measured from the time of the 1994 modification. See Rae and Rae, 107 Or App 726, 730, 813 P2d 1107 (1991) (change of circumstances must be since the last modification to the dissolution judgment). At the time of the 1994 modification, although husband’s circumstances had changed, wife’s had not. The trial court and the parties looked to the wife’s circumstances as they existed in 1993, because those were the same circumstances that presumably existed in 1994.1 do the same.
At first blush, Fellows and Fellows, 124 Or App 476, 862 P2d 1325 (1993), appears to provide some support for the majority’s conclusion. In that case, we suggested that ongoing doubt about employability, degeneration of a degenerative health condition, and incurring predicted future medical expenses satisfied the standard for modification. Id. at 478. In fact, however, whether the evidence satisfied that standard was not disputed on appeal in Fellows. The trial court in that case had ordered a modification for six months. The wife appealed, arguing that the support should be permanent; the husband did not cross-appeal. Id. The only issue before us, therefore, was duration of the modification, not the modification itself. Given the nature of the wife’s degenerative health condition, her prognosis, and the significant doubt about her employability, an indefinite award of support was plainly warranted. See Tomos and Tomos, 165 Or App 82, 88, 995 P2d 576 (2000) (citing Fellows for proposition that deterioration in obligee’s preexisting condition warranted indefinite spousal support). Fellows is not authoritative on the question of whether grounds for modification can be established on such facts and we appropriately should disavow any suggestion that it is.