Graham v. Graham

TERRY, Associate Judge,

concurring in part and dissenting in part:

While I am willing to join my colleagues in remanding the child support matter for reconsideration, I cannot go along with them in sending the alimony claim back to the trial court. Given the record in this case, I would hold that Mrs. Graham has failed to show that she is entitled to receive a single penny more in alimony. I would therefore affirm as to the alimony and reverse as to the child support.

The majority opinion recognizes that there is a tension between our decisions in *360Hamilton v. Hamilton, 247 A.2d 421 (D.C.1968), and Sheridan v. Sheridan, 267 A.2d 343 (D.C.1970). In Hamilton we said that before a child support order may be modified, the party seeking modification must show that there has been a “material change in the circumstances of the parties — a change which affects either the father’s ability to pay or the needs of the minor children.” 247 A.2d at 422-423 (emphasis added).1 In Sheridan, however, we said:

Assuming, arguendo, that the father’s ability to pay has increased, this fact in and of itself is an insufficient basis for a modification in this case.... A motion to increase must be founded on the increased needs of the children. Indeed, the father’s ability to pay is relevant in granting or denying the increase, but it is not the basis on which an increase is initiated or founded.

267 A.2d at 346-347 (footnotes omitted). Unfortunately, we cited no authority for this proposition, and I am inclined to agree with the majority today, ante at 357, that these statements were merely dicta. The obligation of a parent in the District of Columbia to support his or her minor children2 is “unqualified,” Burnette v. Void, 509 A.2d 606, 608 (D.C.1986), and cannot be diminished by the mere happenstance that the children’s parents are no longer married to each other. I think that Hamilton, the earlier precedent, states the rule which we must apply here,3 and that Sheridan, to the extent that it is inconsistent with Hamilton, cannot be followed. See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C.1971). I therefore agree that the change in circumstances which affects Mr. Graham's ability to pay — namely, his substantial increase in income after the divorce — warrants a remand for reconsideration of the request for an increase in child support payments without reference to Sheridan,4

Mrs. Graham’s claim for an increase in alimony is an entirely different matter. My colleagues apparently acknowledge, ante at 358-359, that an award of alimony is far more discretionary than an award of child support and that need and ability to pay are not the only factors which a court may consider when faced with a request for alimony. As a general rule, any duty that one spouse may have to support the other ends upon the entry of a decree of divorce, subject only to court-ordered alimony payments. See D.C.Code §§ 16-912, 16-914(a) (1989). A former spouse seeking an increase in alimony bears the burden of showing that an increase is justified. Tydings v. Tydings, 349 A.2d 462, 463 (D.C.1975). I would affirm the trial court’s conclusion that Mrs. Graham did not meet that burden.

The trial court wrote a 32-page opinion containing abundant findings of fact and conclusions of law. In its first few pages, the court summarized the history of the case and pointed out that Mr. Graham

has been absolutely faithful in the payment of all of his court-ordered obli-gations_ Moreover, he has voluntarily paid, at [Mrs. Graham’s] request, numerous bills over and above what he is ordered by the court to pay. Of even *361greater significance is the fact that, after he obtained a considerably more lucrative contract with [his employer] in March 1982, [he] offered on several occasions to pay [Mrs. Graham] more support than the amount specified in the court order, and [Mrs. Graham] rejected those offers. Finally, [Mr. Graham] voluntarily increased the amount of weekly payments by taking it upon himself [on two occasions] to increase the amount he deposited to her bank account_ [Mrs. Graham] initially refused his offers to pay the additional support, but has acquiesced by accepting and using the increased amounts deposited to her account.

The court then addressed the “numerous evidentiary problems” in Mrs. Graham’s case:

[Mrs. Graham’s] testimony was rambling, unresponsive, repetitive, inordinately defensive, unrealistic, and just plain not credible at numerous points.
To a substantial degree, [Mrs. Graham] was basically trying to relitigate the level of child support and alimony awarded by Judge Fauntleroy. Although she tried to cast her testimony in terms of increases which allegedly occurred in the last two years — because her counsel well understood the applicable legal standard for modification of support orders — it was clear to the Court that Ms. Graham was really attempting to contest the adequacy of the prior award. Therefore, much of her testimony about dramatic increases in need in the 2V2 years since the divorce was simply not credible or was distorted....

The court went on to detail, over the next several pages, the weaknesses in Mrs. Graham’s evidence. It then noted that since the divorce she had spent approximately $142,330.50 — almost $57,000 per year — to support her household, over and above “all private school and college tuition and fees,” which had been paid separately by Mr. Graham. In light of this evidence, the court understandably found Mrs. Graham’s claim of “desperate economic circumstances” incredible:

In the final analysis, Ms. Graham has failed to provide any rational or coherent explanation as to how she has managed to spend $142,330.50 over the last 2lh years, while simultaneously claiming that she has not had enough money for food, clothes, and virtually all of the basic necessities needed by herself and her chil-dren_ [I]t is also clear that Ms. Graham has utterly failed or refused both to manage her money wisely and to make financial decisions that serve her children’s best interests.

Nevertheless, because of Mr. Graham’s improved financial situation, the court increased his child support payments by $15 per week (from $125 to $140) per child and his alimony payments by $100 per week (from $250 to $350).5 Because Mr. Graham “was ready, willing, and able to commence paying increased support in approximately April 1983,” the court made these increases retroactive to April 7, 1983. Mrs. Graham, unsatisfied, wants more.

I see no abuse of discretion in the trial court’s refusal to increase Mr. Graham’s alimony burden any more than it did. There is ample support in the record for the court’s findings and conclusions. I think the court was right on target when it discerned that Mrs. Graham, unhappy with the original award of alimony and child support, “was really attempting to contest the adequacy of the prior award.” The law forbids any such attempt. Hamel v. Hamel, 539 A.2d 195, 199 (D.C.1988) (motion to modify alimony order does not permit court “to reweigh the equities between the parties”); see Hamilton v. Hamilton, supra, 247 A.2d at 423 (child support order “is not subject to modification as a procedural means for reviewing the equities of the prior decree”). Furthermore, while there may be “unusual” circumstances, as the majority suggests, in which a trial court might appropriately increase an alimony award when only the income of the *362paying spouse has increased, none of the circumstances posited by the majority is established on the record before us here.

What this record does reveal is a blatant attempt by Mrs. Graham, without any legal justification, to squeeze more money out of her ex-husband because he has been fortunate enough to improve his financial situation since the divorce. I do not think she should be allowed to do so. Except for the minor change necessitated by Joel v. Joel, 559 A.2d 769, 770-772 (D.C.1989),6 I would affirm the trial court’s ruling on Mrs. Graham’s claim for increased alimony. From my colleagues’ decision to do otherwise, I respectfully but vehemently dissent.

. Although Hamilton speaks of the father’s ability to pay, the rule would of course be the same if the mother were the parent providing support for the children.

. The duty of a parent to support a child continues until that child reaches the age of twenty-one. Butler v. Butler, 496 A.2d 621, 622 (D.C.1985). After the child’s twenty-first birthday, however, a court has no power to order the parent to support the child further, Norris v. Norris, 473 A.2d 380, 381 (D.C.1984), unless exceptional circumstances dictate that parental support be continued past the age of majority. See Nelson v. Nelson, 548 A.2d 109 (D.C.1988) (parents have a duty to support disabled adult children who are unable to support themselves).

. My colleagues are correct in observing, ante at 357 n. 6, that the Hamilton "either/or" rule is now codified at D.C.Code § 30-504(a) (1988), which was enacted in 1987.

. Unlike my colleagues, however, I do not agree with the comment in Tennyson v. Tennyson, 381 A.2d 264, 266 n. 3 (D.C.1977), that a 1976 amendment to D.C.Code § 16-916 vitiated what the court said in Sheridan. That amendment did require courts "to consider both parents as potential sources of support,” ante at 357, but it did not lessen the pre-1976 obligation of fathers to support their minor children. See D.C.Code § 16-916(a) (1973).

. The court also made other changes in the financial portions of the divorce decree which are not at issue here.

. See footnote 4 of the majority opinion, ante at 357.