Bratnober v. Bratnober

SPENCE, J.

Defendant wife appeals from an order modifying interlocutory and final judgments of divorce insofar as that order reduces the amount of alimony and child support payments. She contends that the evidence presented to the trial court did not constitute a legal basis for such modification, but the record does not sustain her position.

The parties married in December, 1940, and separated in 1949. Two children were the issue of the marriage. At the time of separation the parties divided their community property, the wife’s share netting her some $11,400. The wife then moved, with the children, to Illinois to live with her parents. The husband in 1951 went through bankruptcy. In 1952 he sued for divorce, and the wife cross-complained. During the trial of the case, the parties and counsel conferred with the trial judge in chambers as to the terms of a possible settlement. It was then orally agreed that the husband would make monthly support payments of $250— $100 per month for the support of each of the two children and $50 per month for the support of the wife—and that such provisions could be incorporated in any divorce decree. The trial then proceeded and an interlocutory decree of divorce was awarded to the wife on February 26, 1953. She was given custody of the two minor children, and the husband was ordered to make the above specified support payments.

On March 2, 1954, shortly before time for entry of the final decree of divorce, the husband moved to modify the interlocutory decree by reducing the support payments. By stipulation of the parties, the motion was thereafter made applicable to the final decree, which was entered on March 26, 1954. After a hearing, the court granted the husband’s *261motion to modify on the 1 ‘ grounds of change in circumstances and [his] inability ... to pay order.” In its written order of modification the court found, in substance, that there had been a change in circumstances surrounding the husband’s financial condition since the entry of the interlocutory decree in that the original provisions for support were based upon the husband’s oral agreement at the time of the divorce trial to pay the specified sums, and that agreement was made the basis for the decree’s provisions; that no evidence as to the husband’s financial conditions, his earnings or earning capacity, nor of the needs of the wife and minor children was adduced at the divorce trial; that the husband made the agreement with the hope, expectation and understanding that his earnings and monthly income would be substantially increased following the entry of the interlocutory decree, either in the position in which he was then employed or in another position which he was expecting soon to take; that neither of these expectations was realized, and as a result he had not been able to make the payments required; that he was obliged to borrow money in order to make the payments up to and including February 26, 1954; and that he had no property or income of any kind, other than his earnings, which he might use to comply with the court’s original support order. Accordingly, the court reduced the support payments for each child to $75 per month and the alimony payment for the wife to $1.00 per month.

The evidence indisputably shows that the husband’s take-home pay at the time he agreed to the original payments was $338.62 per month, and that it remained the same thereafter, less $2.00 because of increased social security deductions; and that he was obliged to borrow $3,200 from his mother in order to make the support payments up to February 26, 1954.

Defendant wife contends that there was no showing of changed circumstances to justify the modification. Since it “would be incongruous to allow an appealable order to become final and yet to concede the power of a court at a later date, upon the same state of facts, to issue an order nullifying it” (Snyder v. Snyder, 219 Cal. 80, 81 [25 P.2d 403]), it is generally held that the “trial court is without authority to make an order reducing the amount of alimony [or support payments] awarded in an interlocutory [or final] decree of divorce in the absence of a showing that there has been a change in conditions subsequent to the entry of [such] decree.” (Ralphs v. Ralphs, 86 Cal.App.2d 324, 325 [194 P.2d 592].) *262However, upon a proper showing, “the court possesses power to modify [a support] order because of changed circumstances (Civ. Code, § 139) the justification for such “order depends, on the facts and circumstances of each case”; and the “propriety of [the] modification rests largely in the discretion of the trial court. ’ ’ (Moore v. Moore, 133 Cal.App.2d 56, 58-59 [283 P.2d 338] ; Triest v. Triest, 67 Cal.App.2d 320, 322 [154 P.2d 2].)

At the modification hearing, plaintiff husband testified that at the time of the divorce trial he had been working for a record firm about a year and a half; that he anticipated an increase in salary as of that time, and a further raise later; that he had also been negotiating with another company for a better position, with “substantially more” money; that neither of these expectations materialized and, in fact, his net monthly salary was $2.00 less because of additional social security deductions. Defendant wife argues that these expectations of plaintiff husband have no pertinency because it does not appear that they were communicated to her or the court at the divorce trial. She calls attention to the affidavit of the attorney who then represented her, stating that the original support payment “was not conditioned upon any increase in earnings.” She relies on the rule pertaining to contracts that the undisclosed intentions of a party to a contract do not furnish a'basis for its modification. (Brant v. California Dairies, Inc., 4 Cal.2d 128, 133 [48 P.2d 13] ; Bell v. Minor, 88 Cal.App.2d 879, 882 [199 P.2d 718].) However, a support award does not have the finality of the ordinary contract as it is subject to re-examination by the court at any time. (Civ. Code, § 139; Woolams v. Woolams, 115 Cal.App.2d 1, 7 [251 P.2d 392]; Dunning v. Dunning, 114 Cal.App.2d 110, 114 [249 P.2d 609].) Plaintiff husband maintains that the disclosure was made at the divorce trial as appears from his own testimony at the modification hearing, bnt that if there is any uncertainty or ambiguity in the record on that point, such disclosure could reasonably have been inferred by the court at the modification hearing as a circumstance justifying the reduction in the support payments. (Kossine v. Styliano, 40 Cal.App.2d 721, 724 [105 P.2d 952].) But the parties’ conflicting views on this question of disclosure need not be resolved here, for the propriety of the modification order does not necessarily depend upon such disclosure.

In line with his motion for modification, plaintiff husband testified that his expectations as to future salary *263increases constituted the basis for his agreement to make the support payments originally provided. These appear to have been reasonable expectations resting on reasonable prospects and since the original support order was based, in part at least, on his consent, the circumstances which motivated that consent were material to that order. An analogous situation is the case where the court may make an alimony award based not on the husband’s actual earnings but on his ability to earn money, his future prospects. (Webber v. Webber, 33 Cal.2d 153, 160 [199 P.2d 934]; McGann v. McGann, 82 Cal.App.2d 382, 388, 389 [186 P.2d 424] ; see also Pencovic v. Pencovic, 45 Cal.2d 97, 102 [287 P.2d 501].) Defendant relies on certain Alabama cases holding that any anticipated increase in income on the part of the hnsband at the time of the divorce decree, which may not have materialized, cannot be considered as a ground for reducing alimony payments. (Aiken v. Aiken, 221 Ala. 67 [127 So. 819, 820]; Colton v. Colton, 252 Ala. 442 [41 So.2d 398, 399].) But in the light of the rule in this state that “a court is entitled to make [support allowances] in view of a person’s earning ability” (Woolams v. Woolams, supra, 115 Cal.App.2d 1, 7) and his reasonable expectations are an essential consideration (Pencovic v. Pencovic, supra, 45 Cal.2d 97, 102), the contrary reasoning of the Alabama cases is not persuasive.

Whether the support order rests upon agreement of the parties (see Adams v. Adams, 29 Cal.2d 621, 624-625 [177 P.2d 265] ; Hough v. Hough, 26 Cal.2d 605, 612 [160 P.2d 15]) or is determined by the court upon evidence (Becker v. Becker, 64 Cal.App.2d 239, 242 [148 P.2d 381]), the question of reasonable expectations is material and a failure to realize them may constitute a change of circumstances justifying modification of the order. As further indication of the need for modification of his support obligations, plaintiff cites the sizable sum he borrowed from his mother to meet the payments originally scheduled. (Shulman v. Shulman, 125 Cal.App.2d 120, 121-122 [269 P.2d 923].) Certainly, it cannot be disputed that “the trial court entering the decree still retains jurisdiction to modify its orders if circumstances warrant the change, and the proper procedure for a party who is unable to comply with an order for the payment of alimony or the support of his minor children is to seek a modification of the order—not to resist its enforcement, thereby subjecting himself to contempt proceedings.” (Bailey v. Superior Court, 215 Cal. 548, 555 [11 P.2d 865]; Woolams v. Woolams, *264supra, 115 Cal.App.2d 1, 7.) Here upon the record disclosing the failure of plaintiff’s reasonable expectations as a change of circumstances, there appears to be nothing inequitable in the amount of the reduced payments—$75 per month for each child and $1 per month alimony for defendant wife—and in the absence of a clear showing of the court’s abuse of its discretion in making such modification, its order must be sustained. (Leupe v. Leupe, 21 Cal.2d 145, 151 [130 P.2d 697]; Reed v. Reed, 128 Cal.App.2d 786, 793-794 [276 P.2d 36].)

The order appealed from is affirmed.

Gibson, C. J., Shenk, J., Traynor, J., Schauer, J., and MeComb, J., concurred.