(dissenting).
I dissent. I believe that if this case is approached from the standpoint of whether there was a material change of circumstances between 1978 and 1982, the trial court’s elimination of alimony cannot be sustained.
The parties were divorced in 1970 at which time Mrs. Jeppson was awarded $275 per month alimony. Later, in 1978, the parties were again before the court and the alimony was reduced to $150 per month. When the parties were again before the court in 1982, it was the burden of Mr. Jeppson to show that there had been a material change of circumstances since 1978 which would justify the elimination of alimony altogether. Otherwise, under principles of res judicata the 1978 determination could not be disturbed.
In my opinion, this burden was not met. In 1978, Mrs. Jeppson was employed as a legal secretary in Oregon earning $10,732' per year. Since that time, she lost that employment and eleven subsequent jobs. At the time of the 1982 hearing, her emotional condition did not permit her to hold any job which would place her under stress. She could no longer work as a legal secretary nor as a classroom teacher for which she had been educated. Her personal earnings had dropped to $8,087 in 1980 and to $6,445 in 1981. She had earned only $700 in the five-month period in 1982 preceding the hearing below. It is true that she was about to start at new employment as a salesclerk in a greeting card store, but she was to be on a trial basis for the first month and her pay was to be only $3.75 per hour.
In 1979, Mrs. Jeppson traded her equity in a house in Salt Lake City, which she was awarded in the divorce, for a condominium in Oregon. After she lost her employment as a legal secretary, she could no longer afford to live in it so she moved back to Salt Lake City. She rented out the condominium, but the rent was insufficient to cover her mortgage payments and expenses, resulting in a net loss of approximately $675 per year. The equity had not *72increased appreciably since 1979. She owned approximately $6,000 in stocks but these were owned by her in 1978. The majority opinion states that they were not considered by the trial court at the 1978 modification hearing. There is no evidence to that effect. The only evidence on this point was Mrs. Jeppson’s testimony that she could not remember whether the trial court in 1978 was made aware of the existence of the stocks. She added, however, that there was no reason why she would not have been open about it. Mr. Jeppson presented no evidence on this point. I therefore think that the assumption made by the majority opinion is unwarranted.
Mr. Jeppson in 1982 was earning approximately $4,000 per year more than he had earned in 1978. However, his minor daughter was living with him in 1982 instead of with her mother as she had in 1978. The daughter intended to soon enroll at a university, and Mr. Jeppson was planning to provide the cost of her tuition and her support. Thus, while his income had increased, so had his expenses. His net financial position had not materially changed, and the trial judge commented that he was still capable of paying the $150 per month.
In sum, Mrs. Jeppson’s financial position in 1980 had deteriorated considerably from 1978 because of her emotional problems, which kept her from the remunerative employment she had previously enjoyed. She had the same stocks as in 1978; they had not increased in value. The equity which she had in her house in 1978 had been exchanged for an equity in a condominium without any material increase in value. While she was receiving rent from the condominium in 1982, this was offset by the fact that she had to now make mortgage payments in excess of that rent and had to pay rent on her residence in Salt Lake City. There was no evidence that she had any equity in ber automobile for which she was paying $180 per month. Even if she were to liquidate her equity in the condominium and her stocks, which she estimated would total $51,000, and were to invest that amount for her support, it would yield, at 10 percent per annum, $5,100 per year. That income plus her employment at $3.75 per hour would still leave her short of her 1978 level of income.
On the basis that there has been no material change of circumstances favorable to Mrs. Jeppson, I would reverse the termination of alimony by the trial court. I agree that Mrs. Jeppson’s emotional problems did not result either from the marriage or from Mr. Jeppson’s conduct and that there is no risk of her becoming a public charge. However, those facts do not diminish her right to the alimony awarded her in 1978 in the absence of a material change of circumstances. Neither is it material that she has received alimony for twelve years, a fact that troubled the trial judge and apparently influenced his decision.
OAKS, J., having resigned, does not participate herein; JUDITH M. BILLINGS, District Judge, sat.