Meredith v. Meredith

¶1dissenting:

It is well settled in this jurisdiction, as in others, that a support decree can be modified only upon a showing of a substantial and material change in the conditions and circumstances of the involved parties since the entry of the decree. The burden of demonstrating the required change of circumstances rests upon the party seeking the modification.

¶2Tydings v. Tydings, 349 A.2d 462, 463 (D.C.1975) (citations omitted). The majority concludes that although the trial judge did not find that appellee had demonstrated a substantial and material change in circumstances, the judge did not abuse her discretion in granting appellee’s motion to reduce his support payments to his former wife. But the record shows that the trial judge misstated the legal standard and found only that appellee had shown “a change in circumstances with regard to the [appellant’s] need for alimony.” Further, the record does not permit this court to conclude that, in the exercise of her reasoned discretion, granting a reduction was the only alternative available to the trial judge. Nor can this court make the required factual finding for the trial judge. Therefore, I respectfully dissent.

¶3I

¶4In her findings of fact, conclusions of law and order modifying alimony, the trial judge stated in her conclusions of law that “The Court of Appeals ... state[d] the rule to be applied when a party seeks to modify an alimony award: the proponent of the modification must show a change in circumstances either in respect to the husband’s ability to pay support or in the wife’s need for support or both.” The trial judge was quoting from the opinion of the trial court which was appended to this court’s opinion in Alibrando v. Alibrando, 375 A.2d 9, 15 (D.C.1977). The trial judge concluded that appellee had met his burden of proof to show “a change in circumstances with regard to [appellant’s] need for alimony.”

¶5The trial judge based this conclusion on the evidence of appellant’s full-time employment and rental income.1 The judge found that when the parties were divorced in 1980, appellant was unemployed, or if employed at the time of the divorce, the part-time salary that appellant was earning at that time was considerably less than the salary and earnings that she was receiving *923at the time of the hearing.2 The judge also found that appellant currently earns an annual income of approximately $30,756.3

¶6The judge further found that appellant has reasonable and necessary monthly expenses of approximately $2,088.4 The amount was based on the judge’s conclusion that appellant’s necessary expenses for food were one-fourth of the amount stated in her financial statement. Although appellant testified that she purchased food for her mildly retarded adult son who lives with her, as well as for two other persons to whom she rents rooms in her home, the judge found that “her provision of food for everyone in the household is not a necessary expense,” and that the full amount reflected in appellant’s financial statement was not reasonable and necessary because it reflected more than her share of the groceries.

¶7Accordingly, the judge concluded that because appellant has a monthly income after taxes of $2,231.04, leaving a net monthly surplus of $142.66, she is now capable of meeting her own needs, and, consequently, that appellee had met his burden to show “a change in circumstances with regard to [appellant’s] need for alimony.” The judge therefore granted appellee’s motion and reduced appellant’s monthly alimony from $652.00 to $352.00. The judge denied appellant’s motion to alter and amend the judgment.5

¶8II

¶9At no time did the trial judge find that appellee had shown “a substantial and material change” in appellant’s circumstances. Such a finding is required before the trial court may modify a decree of divorce. Tydings v. Tydings, supra, 349 A.2d at 463.

¶10The trial judge’s failure to make the requisite finding may have been a result of her reliance on Alibrando v. Alibrando, supra, 375 A.2d at 9. In that case, the only issue on appeal was whether the unchastity of a former wife was grounds for termination of alimony. 375 A.2d at 12. Thus, the issue before the trial judge in the instant case was not addressed by this court in Alibrando. However, in deciding that unchastity did not warrant termination of alimony, this court appended an opinion of the trial court in that case. In the appended opinion, the trial court relied on Tinney v. Tinney, 209 A.2d 927 (D.C.1965), for the proposition that a change in alimony is *924allowed upon “a proper showing of a change in circumstances.” Alibrando, supra,375 A.2d at 13. Tinney, however, involved the original award of alimony, and did not purport to establish new law on the modification or termination of alimony.6Tinney, supra,209 A.2d at 927 (citations omitted). This may have misled the trial judge in the instant case, even though the trial court opinion in Alibrandospecifically quoted the language in Tydings v. Tydings, supra,with which I begin my opinion. See Alibrando v. Alibrando, supra, 375 A.2d at 13.

¶11In any event, although the trial judge cited the page in Alibrandowhere the Tydings v. Tydings standard was stated, the trial judge expressly stated in her conclusions of law that “the proponent of the modification must show a change in circumstances either in respect to the husband’s ability to pay support or in the wife’s need for support or both.” Thus, the judge misstated the standard to be applied in deciding whether to grant appellee’s motion. The error is made clearer by the fact that the judge also focused in her conclusions of law on that part of the trial court’s opinion in Alibrandowhich cited cases involving the original determination of the amount of alimony, namely, McEachnie v. McEachnie, 216 A.2d 169, 170 (D.C.1966), and Wheeler v. Wheeler, 88 U.S.App.D.C. 193, 195, 188 F.2d 31, 33 (1951).

¶12Notwithstanding the clear language of Tydings v. Tydings, the majority concludes that “there is ample support for [the trial court’s] conclusion that the requisite change in circumstances to permit a reduction in the alimony payment was established.” Majority opinion at 4 (emphasis added). The trial judge never stated such a factual or legal conclusion, to wit that the “requisite” change had been shown as would meet the requirements of Tydings v. Tydings, supra.A finding of “a change in circumstances” is not what our case law requires, and that is all the trial judge found.

¶13The record does not permit this court to conclude, moreover, that the trial judge, in the exercise of her reasoned discretion, was required to find that appellant had experienced substantially changed circumstances since the parties’ divorce.7See Johnson v. United States, 398 A.2d 354, 364 (D.C.1979) (“facts may leave the trial court with but one option it may choose without abusing its discretion”). The trial judge found, based on appellant’s monthly income (including interest, dividend and rental income) and her reasonable and necessary expenses as found by the court (excluding expenses incurred to feed her son and her two boarders and to pay state income taxes), that appellant had a monthly surplus of $142.66 in income. At the time of the hearing, however, appellant was supporting a mentally retarded adult son,8 and was *925without health insurance or pension benefits, and still had to pay state income taxes.

¶14Furthermore, as appellant pointed out in the trial court and on appeal, the trial judge could not reweigh the equities between the parties in granting appellee’s motion. See Hamel v. Hamel, 539 A.2d 195, 199 (D.C.1988) (although support decree is subject to modification, it is not “a procedural means of reviewing the equities of the prior decree” (quoting Hamilton v. Hamilton, 247 A.2d 421, 423 (D.C.1968))). Nothing in the record indicates that appellant was not taking care of her son at the time of the parties’ divorce, nor that she was not solely responsible for paying the mortgage on her home. On appeal, appellant contends that she rents the rooms in her home in order to be able to pay the mortgage.

¶15Under these circumstances, the trial judge clearly was not required to find either that appellant had a monthly surplus of $142.66 or that such a surplus constituted a substantial and material change in her circumstances as would warrant a reduction of $300.00 in her monthly alimony. On the other hand, to grant appellee’s motion to reduce his alimony payments, the trial judge was required to find that appellee had met his burden to show a material and substantial change in circumstances. Accordingly, because the trial judge both misstated the legal standard and failed to make the required finding of fact, I would reverse.