Concurring and Dissenting. — I concur in the conclusion that petitioner is not entitled to a writ of mandate here. I do not agree, however, with the holding therein that the trial court, in fixing the amount of permanent alimony, should not be limited to a consideration of the circumstances existing at the time the interlocutory decree of divorce was granted.
Section 139 of the Civil Code provides that the trial court may make such suitable allowance to the wife as the court may “deem just, having regard to the circumstances of the parties respectively; and the court may from time to time modify its orders in these respects. ...” In Hall v. Hall, 42 Cal.2d 435 [267 P.2d 249], we reversed the judgment of the trial court insofar as it awarded Mrs. Hall $350 per month for her support and maintenance. Such a reversal set the matter of permanent alimony at large and remanded that part of the cause for a new trial. On the retrial of the amount of alimony to be awarded, I see no escape from the conclusion that the trial court is limited to a consideration of the circumstances of the parties as they existed at the time the original award was made. We held that the amount awarded to Mrs. Hall at that time constituted an abuse. of discretion on the part of the trial court under the facts then prevailing. The code provides that the court may, from time to time, modify its orders with respect to the support provisions made by it. The modification must, however, be made upon a proper showing (Bradley v. Bradley, 40 Cal.App. 638 [181 P. 237]) that conditions have changed since the entry of the initial order (Grant v. Grant, 52 Cal.App.2d 359 [126 P.2d 130]; Triest v. Triest, 67 Cal.App.2d 320 [154 *387P.2d 2]); and only such facts as have arisen or have become known to the party since the entry of the decree may be the basis of modification (Bradley v. Bradley, 40 Cal.App. 638 [181 P. 237] ; Ralphs v. Ralphs, 86 Cal.App.2d 324 [194 P.2d 592]).
At the time the interlocutory decree was granted and the allowance for permanent support made to Mrs. Hall, the circumstances then prevailing led us to conclude that the award was excessive and constituted an abuse of discretion. Since that time, Judge Hall, as a federal district judge, has received an increase in salary. Had there been no reversal by this court, Mrs. Hall, upon proper application for modification, might have been able to show that because of changed circumstances she was entitled to a modification of the prior order for alimony as to future installments. The earlier order would, however, have been final as to accrued installments (Zaragoza v. Zaragoza, 48 Cal.App.2d 27 [119 P.2d 162] ; Stevens v. Stevens, 88 Cal.App.2d 654 [199 P.2d 314] ; Steele v. Steele, 108 Cal.App.2d 595 [239 P.2d 63]). It seems most obvious here that on the retrial of the matter of support, the trial court must be limited to a consideration of the circumstances as they originally existed and that any modification must be made upon a proper showing of changed circumstances and date from the time of such changed circumstances. This is not to say that a new action must be brought because to avoid multiplicity of suits, a court, sitting in equity, may consider all related matters brought to its attention. It should be clearly understood, however, that any increase in salary received by Judge Hall since the time of the interlocutory decree should not be considered by the trial court in its retrial of the matter of permanent alimony as originally awarded. If this increase in salary should prompt the trial court to feel that an increase in support allowance should be made to Mrs. Hall, such increase should not be retroactive to the time the original award was made because of the circumstances then prevailing. In other words, it is my view that an award of permanent alimony must be based upon the circumstances of the parties existing at the date of the interlocutory decree, and any modification of such award may not take effect until the date a change in such circumstances is shown to exist. The trial court may, of course, retry the issue of permanent alimony and hear any application for modification at the same time.
Schauer, J., concurred.