Opinion
Howard L. Hibbard (Howard)
I.
Factual and Procedural Background
Howard is a Vietnam combat veteran with two Bronze Stars for valor in ground combat. As a result of his service in Vietnam, he has suffered from symptoms of posttraumatic stress disorder (PTSD) since 1970. According to his psychotherapist, Howard became totally disabled in 2011 as a result of his PTSD. In 1971, sometime after Howard’s honorable discharge, the parties married; they separated in 2001 after nearly 30 years of marriage. They had two children, neither of them minors now.
In 2002, the parties negotiated a marital settlement agreement (MSA) and according to it, both were in “good health” and employed, with Lydia earning $27,000 and Howard earning $84,000 per year. The MSA was attached to and incorporated into the judgment of dissolution, which included the following support agreement: “FAMILY SUPPORT: [Howard] shall pay to [Lydia] by the 5th day of each month the sum of $4,000 per month. Said payments may be reduced to an amount to be mutually agreed upon by [Howard] and [Lydia], after [minor child] reaches the age of eighteen, graduates from high school and the family residence is sold. Such a reduction will be based upon a change of living expenses for [Lydia], but shall not be reduced to an amount lower than two thousand dollars per month, and it is agreed by the parties that spousal support is an ongoing obligation of [Howard], and will only terminate upon [Lydia’s] death or remarriage, or the death of [Howard]. [Howard] waives all right to support, now or in the future.” (Italics added.) The MSA also included the following provisions: “VOLUNTARY AND INFORMED CONSENT: The parties further acknowledge and agree that they enter into this agreement voluntarily, free from duress, fraud, undue influence, coercion, or misrepresentation of any kind. [][]... [f] MODIFICATION, REVOCATION OR TERMINATION: This agreement may be altered, amended, modified, revoked, or terminated only by an instrument in writing expressly referring to this document by paragraph to be modified and signed by both parties. Both parties waive the right to claim, contend or assert in the future that this agreement was modified, canceled, superseded or changed by oral agreement,] course of conduct, or estoppel in the future. [][]... [f] INVALIDITY; SEVERABILITY: This agreement has been jointly negotiated by and between both parties and shall not be construed against either party. If any term, provision or condition of this agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of
In May 2002, Lydia’s support was reduced to $2,000 per month, when the parties’ daughter turned 18 years old. At some point, the family residence was sold.
On February 10, 2012, Howard filed a motion to terminate spousal support, alleging that in December 2011 he had been diagnosed formally with PTSD, relating to his service in Vietnam, and that he was currently unable to work more than two to three hours per day. Howard also alleged in 2012 that he had to borrow $25,000 in order to keep his law practice running and to pay for spousal support; he also had a federal tax lien against him in the amount of $39,000.
In his declaration, Howard indicated he would be applying for “a service connected disability”; he estimated it would take over one year to determine his eligibility. Howard alleged that Lydia’s income had increased to $36,000 per year. He alleged that the parties’ circumstances had changed and the possibility of either of them becoming disabled was neither contemplated by the parties nor reflected in the MSA. Howard further declared that his legal business had declined “due to the recession and impact on real property,” such that his income had been reduced to $38,000 per year—an amount he did not expect to improve. His income and expense declaration stated that his income was $4,000 per month and his expenses were $7,542 per month. Howard later declared that he was shutting down his law practice and that he hoped to receive disability income of $2,940 per month plus Social Security of $1,100 per month for a total of $4,040 per month. He attached his application for Veterans Benefits Administration disability benefits.
The matter was heard on declaration and oral argument on May 17, 2012. The trial court determined that it had jurisdiction and that even though Howard’s circumstances were different now, support was subject to an agreed-upon floor of $2,000 per month that was an enforceable and nonmodifiable order. Howard’s motion to terminate spousal support was denied.
Howard filed this timely appeal.
H.
Discussion
A. Standard of Review and General Legal Principles Regarding Spousal Support
“ ‘Marital settlement agreements incorporated into a dissolution judgment are construed under the statutory rules governing the interpretations of contracts generally.’ ” (In re Marriage of Simundza (2004)
As has often been restated: “ ‘The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. [Citation.] If contractual language is clear and explicit, it governs. [Citation.] On the other hand, “[i]f the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of mating it, that the promisee understood it.” [Citations.]’ [Citation.] ‘The mutual intention to which the courts give effect is determined by objective manifestations of the parties’ intent, including the words used in the agreement, as well as extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties. [Citations.]’ [Citations.]” (People v. Shelton (2006)
The focus is on ascertaining and implementing the parties’ mutual intent when they entered into the settlement. (Simundza, supra,
Generally, “[s]pousal support awards and agreements, temporary as well as ‘permanent,’ are modifiable throughout the support period . . . except as otherwise provided by agreement of the parties. [(Fam. Code, §§ 3603, 3651, subd. (c)(1), 4333.)]” (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2012) ¶ 17:90, p. 17-32.5 (rev. # 1, 2012), italics omitted.) “Unlike child support jurisdiction, spousal support jurisdiction does not necessarily continue postjudgment and may be divested by the terms of the order. Unless jurisdiction to award spousal support has been either expressly reserved by the order or impliedly reserved . . . , postjudgment spousal support is limited by the stated duration of the order. [Citations.]” (Id., f 17:91, p. 17-32.5 (rev. # 1, 2012), italics omitted.)
B. Waiver of the Right to Modify
The question raised in this appeal is whether the parties have agreed in writing that the spousal support is not subject to modification beyond the $2,000 floor or subject to termination except upon the death of either party or Lydia’s remarriage. Since there is no conflict in the extrinsic evidence, we make an independent determination of the meaning of the agreement. (Parsons v. Bristol Development Co. (1965)
Howard argues that the court has the power to modify his support order. We agree that in general courts can and do modify support orders. Here, however, there is an agreement and a stipulated order, both of which provide that spousal support is not modifiable except for the specific circumstances resulting in a reduction of support to $2,000. The court has limited power under these circumstances. “[T]he trial court’s discretion to modify the spousal support order is constrained by the terms of the marital settlement agreement. The court may not simply reevaluate the spousal support award.” (In re Marriage of Aninger (1990)
Similarly, in In re Marriage of Sasson (1982)
As these cases instruct, when drafting MSA’s, the parties and counsel should be particularly mindful of all possible circumstances that might warrant a modification or cessation of spousal support, and plan accordingly. Davis, supra,
In the instant case, the parties agreed that spousal support would “only terminate” upon Howard’s death or Lydia’s death or remarriage. The MSA further provided that Howard would pay Lydia $4,000 per month in spousal support. When the parties’ daughter graduated from high school and the family residence was sold, the $4,000 per month could be reduced to an amount mutually agreed upon by the parties, “based upon a change of living expenses for [Lydia], but shall not be reduced to an amount lower than two thousand dollars per month ...” The trial court determined that it had jurisdiction to modify, but nevertheless, based on the terms of the agreement, it lacked the ability to modify the agreed-upon support to less than $2,000. We agree that the MSA made the support order nonmodifiable to not less than $2,000.
Although not cited by the parties, we pause to note that In re Marriage of Alter (2009)
Here, unlike in In re Marriage of Alter, supra,
C. Howard’s Other Contractual Theories
Despite the otherwise clear language in the MSA providing for a spousal support floor of $2,000 and termination only in the event of either party’s death or Lydia’s remarriage, Howard asserts various contractual theories to support his position that his support obligations should be terminated. For example, he argues that an “unequivocal provision” in the MSA was required to divest the trial court of its jurisdiction to modify spousal support. According to Howard, the MSA should have contained “specific language precluding judicial modification.” Not so. It is well established that no specific formula or “ ‘magic’ words” are required to preclude modification. (In re Marriage of Jones (1990)
Howard’s reliance on In re Marriage of Cesnalis (2003)
To the extent Howard suggests that his disability was not foreseeable and, thus, because of either changed circumstances or impossibility
The language in the parties’ MSA and stipulated judgment is specific, and the MSA expressly provides in pertinent part: “[I]n no event shall it be reduced to an amount lower than two thousand dollars per month, and it is agreed by the parties that spousal support is an ongoing obligation of [Howard], and will only terminate upon [Lydia’s] death, [Lydia’s] remarriage or the death of [Howard].” Indeed, if Lydia became disabled and sought to increase spousal support, she would face the same insurmountable obstacle that Howard faces here—the clear and unambiguous language of the MSA.
m.
Disposition
The judgment is affirmed. Lydia is entitled to her costs on appeal.
Reardon, Acting P. J., and Rivera, J., concurred.
A petition for a rehearing was denied February 8, 2013, and the opinion was modified to read as printed above. Appellant’s petition for review by the Supreme Court was denied March 27, 2013, S208783.
Notes
Judge of the Contra Costa Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
As is customary in marital dissolution cases, we refer to the parties by their first names for ease of reading and to avoid confusion, not out of disrespect. (In re Marriage of James & Christine C. (2008)
All further statutory references are to the Family Code, unless otherwise stated.
Howard’s declaration in support of his application for disability benefits reads as follows: “Since returning from Vietnam in 1970,1 have continuously [szc] been hounded by my mind. This has been going on so long, I thought it was normal and learned to cope with it until my anxieties started limiting my work day. ['][] I have suffered war flashbacks and nightmares every day since my discharge. A daily flashback is triggered by random scenes such as a road sign, odd vehicles, people’s faces or other scenes, without any direct relationship to war. Almost every night, I am fighting nightmares by running to or from, climbing away or toward, hiding from, searching for something I need or fighting some dangerous circumstances, [f] In order to keep ‘the demons’ in check, I abused alcohol and marijuana every night to cope. Unless I drank myself into a stupor, when I would try to go to sleep, my mind would turn into a three ring circus of anxieties and demons. I, like many veterans, threw all the war memories into the closet to forget it and move on. When I came back from the war I worked through attention deficit problems in college and law school. I was able to avoid the debilitating effects of excessive alcohol abuse as I have always maintained a rigorous workout schedule a couple times a week, [fj Since 2001, I started to write a novel. The book is about an attorney who suffers flashbacks every day and nightmares at night. I used all of my terrifying experiences as chapters in the book. During this process, I began to notice that my ability to think had become
Section 3591 provides, in relevant part, as follows: “(a) Except as provided in subdivision[] . . . (c), the provisions of an agreement for the support of either party are subject to subsequent modification or termination by court order. [5[] . .. [51] (c) An agreement for spousal support may not be modified or revoked to the extent that a written agreement, or, if there is no written agreement, an oral agreement entered into in open court between the parties, specifically provides that the spousal support is not subject to modification or termination.”
Howard incorrectly cites the Restatement Second of Contracts, section 265, to argue the theory of frustration of purpose. He claims that since it is now impossible for him to comply with the spousal support provisions, he is excused from his performance. This argument is misplaced for two reasons. First, none of the cases he cited ever applied this theory. Second, Howard omitted the following from the passage he quoted: “Contract liability is strict liability. It is an accepted maxim that pacta sunt servanda, contracts are to be kept. The obligor is therefore liable in damages for breach of contract even if he is without fault and even if circumstances have made the contract more burdensome or less desirable than he had anticipated.” (Rest.2d Contracts, ch. 11, Introductory Note, p. 309.)