In re the Marriage of JEANNETTE PRIETSCH and J. BRYANT CALHOUN. JEANNETTE PRIETSCH, Appellant, v. J. BRYANT CALHOUN, Respondent.
No. A031666
First Dist., Div. Five.
Mar. 24, 1987.
190 Cal. App. 3d 645
Frank Evans for Respondent.
KING, J.-In this case we hold that after a lengthy marriage it is reversible error (1) to modify and terminate spousal support when the income and expenses of the supporting spouse have not changed since the prior order and the needs of the supported spouse continue to outweigh her ability to support herself; (2) to order a substantive stepdown of future spousal support when no evidence has been presented and no determination made by the court that the supported spouse will become more able to meet her financial needs in the future; or, (3) even if the evidence could somehow support a termination of spousal support nine years in the future, for the trial court to give the supporting spouse, without the consent of the supported spouse, the option to pay a lump-sum amount equal to the present value of future payments and obtain an immediate termination of the court‘s jurisdiction over the issue of future spousal support.
Jeannette Prietsch appeals from an order granting J. Bryant Calhoun‘s motion to modify and terminate spousal support. She contends the court committed reversible error (1) by ordering a termination of jurisdiction over spousal support nine years in the future, or after payment by Calhoun of a lump-sum amount equal to the present value of the future payments, whichever occurred first; and (2) by automatically decreasing the amount of support payments on an annual basis over a nine-year period. We modify the order to correct for legal error and affirm as modified.
I
FACTS
The parties were married for 24 years from 1956 until 1980 and have two adult children. During the marriage Calhoun entered and completed medical school. He is an opthalmologist. In 1956, Prietsch received a bachelor‘s degree in English literature. From 1966 to 1969, she worked as a systems analyst for Proctor & Gamble. In 1971, she earned a master‘s degree in science and mathematics, and in 1976 she earned a master‘s degree in theoretical statistics. She also finished her course work for a doctoral degree, but did not complete her thesis. Shortly after separation, she moved to Stockholm, Sweden, and found a job as a computer programmer. In 1982, she began work as a systems analyst for Stockholm Localtrafik (a public transportation system) at a salary of SKR 114.000 (approximately $19,000 in 1982).
The interlocutory judgment of dissolution, entered July 1950, ordered Calhoun to pay Prietsch spousal support of $1,500 per month for five months, then $1,200 per month thereafter, pursuant to stipulation. In
After a contested hearing in August 1984, the trial court in its order filed December 6, 1984, found Prietsch‘s needs “far outweighed” her ability to be self-supporting, and Calhoun‘s financial responsibilities were “well within manageable limits.” No reduction in Calhoun‘s income was found to have occurred since the prior order. As a result of these findings, the court increased Prietsch‘s spousal support to $900 per month beginning January 1985. However, the court also ordered a substantive stepdown1 which automatically reduced the support amount by $100 a month on an annual basis, terminating spousal support “absolutely and forever” after the payment due December 1, 1993. The court also provided Calhoun with an optional plan where, by paying Prietsch prior to December 31, 1984, a cash payment equal to the discounted present value of the future payments ordered, “spousal support would forthwith and forever terminate.”
Calhoun exercised the lump-sum payment option provided by the order in a timely manner. The parties entered into a stipulation placing the money in a trust account with monthly payments paid therefrom to Prietsch, pending the resolution of this appeal.
II
MODIFICATION OF SPOUSAL SUPPORT
Although Prietsch requested a modification of spousal support to $2,000 per month, she does not contest on appeal the increase ordered from $600 to $900 per month. She does contest the court‘s order for a substantive stepdown, a lump-sum payment, and for termination.
However, the court did find circumstances had changed since the original order, but the changes it found justified increasing Prietsch‘s support rather than decreasing or terminating it. Although Prietsch has significant education and employable skills and is not a typical “displaced homemaker,” at the time of the modification hearing the court found she was not able to provide for her own reasonable needs, even with the $600 a month which Calhoun had been paying for spousal support under the then existing order. The court‘s increase of spousal support was recognition of that fact. The court found “a significant differential in the parties’ earning ability and financial needs,” and that “[Prietsch‘s] needs continue to far outweigh her ability to earn either by direct employment or by reasonable return on investment of her separate property.” Prietsch was found to live “in nominal quarters” below “the style” to which the parties “had become accustomed during the course of the marriage,” while Calhoun lived “in substantially better quarters” than those which the parties “had been accustomed to during the course of their marriage.” His quarters were “basically provided by [Calhoun‘s] new wife.” Finally, the court found Calhoun‘s income “had not appreciably declined” and his claim of anticipated reduction of income was found to be “speculative.”
Thus, the court‘s findings fully support the increase in spousal support for Prietsch from $600 to $900. However, for reasons which are unexplained, and in direct contradiction to the findings contained in the court‘s order, the court ordered the substantive stepdown and the termination of spousal support described above. Absent any factual determination which
Our role as an appellate court is not that of factfinder; that is the role of the trial court. We cannot concern ourselves with unreported discussions in chambers or any other claims or matters which are not a part of the record on appeal. Our role is to determine from the record before us whether the findings of the trial court support the order it made.
III
THE SUBSTANTIVE STEPDOWN IN SPOUSAL SUPPORT
Prietsch contends the court‘s order automatically decreasing support payments is based on speculative expectations rather than on reasonable inferences drawn from the evidence presented; thus the court abused its discretion when it ordered a substantive stepdown in spousal support.
Although the court has broad discretion in ordering or modifying an order of spousal support, “orders for changes in support to take effect in the future must be based upon reasonable inferences to be drawn from the evidence, not mere hopes or speculative expectations.” (In re Marriage of Rosan (1972) 24 Cal.App.3d 885, 896.) “Orders automatically decreasing in amount at specified intervals cannot be based on mere supposition as to what the supported party‘s future circumstances might be. Evidence in the record must support a reasonable inference that needs will be less with each step-down and that the spouse can realistically be self-supporting at the time nominal payments are set to begin.” (Hogoboom & King, Cal. Practice Guide: Family Law 1, supra, § 6:141.)3
The court here found changes in circumstances had occurred since the prior order, but the changes found by the court justified increasing Prietsch‘s award rather than decreasing it. What evidence is there, then, to indicate
When evidence exists that the supported spouse has unreasonably delayed or refused to seek employment consistent with her or his ability, that factor may be taken into account by the trial court in fixing the amount of support in modification proceedings. (In re Marriage of Rosan, supra, 24 Cal.App.3d at p. 896.) Likewise, termination of support can be ordered where the supported spouse has failed to exercise diligence in seeking employment. (In re Marriage of Sheridan (1983) 140 Cal.App.3d 742.)
Here the court declined to make a finding that Prietsch willfully refused to obtain gainful employment in her profession either in the United States or in Sweden. On the other hand, the court apparently agreed with Calhoun‘s argument when it issued its decision to decrease and terminate support. The court stated at various points in the hearing, “She has chosen a level of remuneration which she probably could have gotten much more remuneration if she stayed here in the United States. . . . All I know is the general level of salaries for people in her position is quite high in this area, has been for years. . . . She is probably capable of supporting herself to that degree [as when she was married] if she were here in the Bay Area.” These statements indicate the trial court overlooked the basic rule that Calhoun, in order to obtain a modification and termination of spousal support, had to show a change of circumstances had occurred since the prior order. At that time Prietsch had been in Sweden for two years and had just begun her job as a systems analyst for Stockholm Localtrafik—the same job with the same employer she had at the time of the modification hearing. Thus the fact she was working in Sweden instead of the United States was irrelevant since it was not a change in circumstance since the prior order was made.
The court‘s apparent consideration of this argument was also erroneous because no evidence in the record supports it. Although Calhoun‘s counsel repeatedly argued at the modification hearing that Prietsch could make more money in the San Francisco Bay Area than she currently earns in Sweden, he presented no evidence to establish the truth of this assertion. In fact, the only evidence presented to the court concerning Prietsch‘s willingness to work was outdated, but suggested Prietsch was working close to capacity. A 1982 report from an employment analyst hired by Calhoun stated, “Mrs. Prietsch stands out as a hard working person, looking for job satisfaction. Her analytical mind makes her well suited for systems work. Her logic and verbal ability make her statements very convincing.”
Calhoun next contends the court could reasonably conclude Prietsch‘s earning capacity would grow in Sweden by virtue of the length of time she lives there. Again, no evidence was presented to establish this fact. Indeed, the court‘s findings suggest just the opposite. Since the 1982 support order, Prietsch‘s needs had increased rather than decreased, despite living in housing accommodations of lesser quality than enjoyed by the parties during marriage. Without supporting evidence, any attempt to predict Prietsch‘s financial circumstances through 1993 is total speculation. Prietsch may or may not advance in her chosen field. The Swedish economy may or may not be able to support systems analysts with Prietsch‘s credentials.
Calhoun also refers to the favorable rate of currency exchange between Sweden and the United States as justification for the court‘s order. Although evidence on this issue might constitute a change in circumstances which could justify a decrease in spousal support, there was no evidence this favorable rate of exchange would continue in the future. Indeed, common experience, including the present fall of the dollar on world currency markets, demonstrates how speculative this factor is when considered over a period 10 years into the future. Thus, it cannot support an order for a substantive stepdown in spousal support.
Calhoun challenges Prietsch‘s financial assistance to her parents and argues her travel expenses are extravagant. Both of these factors are irrelevant to our evaluation of the lower court‘s order. The court found Prietsch‘s “needs far outweigh her ability to earn.” Drawing all inferences in support of the trial court‘s decision, we must assume the court was referring to Prietsch‘s reasonable needs, as well as her reasonable ability to earn. Thus it makes no difference for the purpose of Calhoun‘s argument whether the court included or excluded these particular expenses in its final total of Prietsch‘s reasonable needs: if the court found these expenses to be reasonable, then it made a finding of fact which we cannot disturb on appeal, and if it found these expenses to be extravagant then we must assume it excluded the figures from its determination of Prietsch‘s reasonable needs. Additionally, the trial court sustained a relevance objection to testimony about the money Prietsch sends to her parents monthly and to testimony about the money she unsuccessfully invested in her parents’ business. Thus, it is unlikely the court even considered these expenses in arriving at its decision.
Additionally, Prietsch‘s educational background is not a “changed circumstance” which warrants a decrease in support. At the time of the prior order, she had the same amount of education which she now possesses. It has not provided her with financial self-sufficiency in the time that has passed since then. Thus, it cannot justify the substantive stepdown provision without additional evidence indicating Prietsch will be moving closer to being able to completely support herself, or has been less than diligent in finding suitable employment.
The critical deficiency with Calhoun‘s argument and, to the extent the court was swayed by it, the court‘s order for a substantive stepdown, is that neither has any support in the court‘s findings or the evidence. In sum, the trial court abused its discretion when it ordered a substantive stepdown in Prietsch‘s spousal support over a nine-year period without any foundation in the evidence that the relevant factors (see
IV
TERMINATION OF JURISDICTION OVER SPOUSAL SUPPORT
Prietsch‘s final contention is that the trial court applied the wrong legal standard when it automatically terminated jurisdiction over spousal support at the end of nine years or, at Calhoun‘s option, upon a lump-sum payment of the present value of the total support obligation called for by the modified order.
“A trial court should not terminate jurisdiction to extend a future support order after a lengthy marriage unless the record clearly indicates that
“It is possible that difficulties not contemplated at this time will frustrate even a good faith attempt by the wife to become wholly or partially self-supporting. . . . [A]fter a lengthy marriage a retention of jurisdiction to modify spousal support should be the norm and . . . the burden of justification is on the party seeking termination.” (In re Marriage of Dennis (1973) 35 Cal.App.3d 279, 285.)
Prietsch and Calhoun were married for 24 years and, like the parties in Morrison, are in their early 50‘s. As previously discussed, the court found Prietsch‘s needs continue to far outweigh her ability to support herself, there was a substantial difference in the earning ability of the parties, and Calhoun had substantial ability to continue paying support to Prietsch. Based on these facts, the court increased the amount of spousal support to be paid by Calhoun from $600 a month to $900 a month beginning in 1985. Under Morrison and Dennis, these facts required the court to retain jurisdiction indefinitely over the issue of future spousal support. However, in contradiction of these rules, the court ordered that after the payment due December 1, 1993, or upon Calhoun‘s timely exercise of the option to pay a lump sum representing payment of the present value of the future payments which were ordered, spousal support and the court‘s jurisdiction to extend or modify it would immediately terminate “absolutely and forever.”
The court was familiar with Morrison, but its explanation reveals a disagreement with and a refusal to follow the rule of law established in Morrison. The court did erroneously burn its bridges.
First, the court recognized Prietsch‘s challenge to the termination of jurisdiction raised a pure issue of law, and it even recited the California Supreme Court‘s ruling in Morrison.4 However, the court chose to disregard the
Prietsch‘s attorney pointed out to the court that “Morrison, a Supreme Court case, went on for five pages on why the legislature didn‘t mean just what you are saying.” The court responded, agreeing that “Morrison and the others keep saying that isn‘t what the legislature meant.” (Italics added.)
The court obviously recognized, but disagreed with, Morrison‘s clear holding that termination of jurisdiction over spousal support after lengthy marriages should not occur without proof the supported spouse can provide for his or her own reasonable needs. The Morrison court‘s review of the Family Law Act‘s legislative history revealed, “[T]he [1969 Assembly Committee on Judiciary] report does not in any way suggest that when the supported spouse is unemployed or is earning only a small salary, a court should set a jurisdictional termination date based on the mere hope that this will induce that spouse to become self-supporting. Nor does it suggest that a court is justified in setting a jurisdictional termination date simply to relieve the supporting spouse of a long-term obligation. . . . [T]here is nothing in this report (or any other legislative history) to indicate that the Family Law Act was intended to be ‘some sort of mandate by the Legislature to the courts to relieve [the supporting spouse in every case] of any long, continuing obligation for spousal support.‘” (In re Marriage of Morrison, supra, 20 Cal.3d at p. 452, quoting In re Marriage of Rosan, supra, 24 Cal.App.3d at p. 897, italics added.)
The trial court applied its personal view of the sociological origins of the Family Law Act without any support in the record and in direct contradiction to controlling case law. “Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court.” (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Thus, the trial court was not free to ignore our Supreme Court‘s ruling and interpretation of legislative intent, regardless of personal beliefs.
There certainly are cases where it is appropriate for the court to terminate jurisdiction over spousal support, even though there has been a lengthy marriage, although, based upon the court‘s own factual findings, this
Ever since Morrison, the family law bench and bar, and subsequent appellate court decisions, have exhibited confusion over what constituted a “lengthy marriage” as that term was used in Morrison. This confusion has arisen because of the significance and weight Morrison placed upon the fact of the length of marriage.
However, as the Morrison decision pointed out, “At the time of the interlocutory judgment in this case,
These circumstances should be considered in light of legislative intent expressed in the Assembly Judiciary Committee report in approving the Family Law Act. “This report indicates that in those cases in which the supported spouse is working, the amount and duration of support, if any, should reflect this fact. The report also sets forth the Legislature‘s intent that
Thus, when spousal support is ordered and the duration and a termination date are contemplated, the trial court should not make its decision solely upon the duration of the marriage, but must consider each of those circumstances set forth in
Since there can be no bright line, can guidelines be fashioned as to how duration of the marriage should be considered by trial courts? In short-term marriages the duration of the marriage, considered alone, will usually militate against any but short-term spousal support with a fixed termination date. In short-term marriages spousal support will most usually be ordered where the needs of minor children or the employment circumstances of the supported spouse require spousal support until the supported spouse can readjust to single status. In medium-term marriages where spousal support is ordered, the duration of the marriage is of greater significance, but by itself does not preclude the exercise of the court‘s discretion by fixing a date for the termination of jurisdiction over spousal support. The longer the marriage the more likely it is that it will constitute an abuse of discretion for the court to fix a date for termination of jurisdiction over the issue of future spousal support without a clear showing that it is reasonably probable the supported spouse will be self-sufficient by the termination date.
We emphasize that the circumstance of the duration of the marriage is only one of the eight circumstances the Legislature has required the court
With regard to fixing a date for the termination of jurisdiction over spousal support, one court has observed “[W]e have found no case declaring it to be an abuse of discretion not to terminate jurisdiction.” (In re Marriage of Wright (1976) 60 Cal.App.3d 253, 257.) However, for a trial judge to not fix a termination date because of concern about reversal, when he or she believes one is appropriate under the circumstances, is not only a failure to follow the law, it is a failure to follow the legislative scheme contemplated by
For this reason the trial judge must not be reluctant and, indeed, has a duty to fix a termination date for spousal support where justified, after considering the circumstances set forth in
If the trial judge makes what all too often is the typical order, that is, spousal support of a specified amount payable with no termination date, the judge hearing a motion to terminate years later may conclude that the trial judge really intended that spousal support should not end except upon
Where the duration of the marriage is too great to be short-term, whether it is a medium or long-term marriage, if the court is presented with evidence justifying an open-ended order for spousal support, there should not be any termination date fixed. On the other hand, if the evidence, considering the applicable circumstances under
A “Richmond” order is one which sets spousal support for a fixed period based upon evidence that the supported spouse will be self-supporting by the end of the period. Most typically, as in Richmond, this evidence comes from the testimony of the supported spouse whose post-dissolution game plan contemplates a point in time at which he or she will be self-sufficient. It may be the result of completing future education or training, at which time full-time employment should produce the income necessary to meet the reasonable needs of the supported spouse.
In order to avoid the Morrison prohibition against the trial court burning its bridges by fixing a definite date in the future at which time jurisdiction over spousal support will terminate, the court in a “Richmond” order retains jurisdiction to modify both the amount and term for jurisdiction over spousal support conditioned upon the supported spouse, prior to the date set for termination of jurisdiction, filing a motion and showing good cause why the order should be modified either as to amount or term of jurisdiction, or both.
The effect of a “Richmond” order is to tell each spouse that the supported spouse has a specified period of time to become self-supporting, after which the obligation of the supporting spouse will cease. The effect may be of greater psychological importance, than legal. However, if things do not work out as contemplated, the supported spouse can, upon a showing of good
We believe that a “Richmond” order is the most appropriate form of order for spousal support in all cases except (1) where spousal support is either not ordered, or is ordered for a fixed term of short duration, (2) in the most lengthy marriages where the circumstances justify truly “permanent” spousal support, or (3) where the supported spouse does not possess the capacity to become self-sufficient.
We reemphasize, however, that the duration of the marriage is only one of the circumstances
Finally, we reach the issue of the trial court having ordered that Calhoun would have the option of obtaining an immediate termination of the court‘s jurisdiction over future spousal support by paying in one lump-sum the present value of the future spousal support payments which were ordered. We start our discussion of this issue by noting that Calhoun can cite no authority for the propriety of such an order after a long-term marriage, because there is none. We cannot foresee any circumstances where such an order would not constitute an abuse of discretion. Even if this insurmountable hurdle could be overcome, we would have to reverse the trial court here because the findings which were made do not support such an order and no evidence was presented to support it. In making the order the court engaged in the kind of speculation about the future which Morrison and Dennis prohibit.
Even if there had been evidence to support the substantive stepdown, it would have been based upon a showing that Prietsch would, each year, have an increased ability to provide for her own support. If this assumption failed, Prietsch would be able to return to court and seek a modification. By unilaterally giving Calhoun the ability to terminate the court‘s jurisdiction, the court prevented Prietsch from exercising her right to seek a modification based upon a change of circumstances. What if, before the final payment ordered December 31, 1993, Prietsch‘s health failed or her employment ceased through no fault of her own and she could not obtain other employment because of her age? In the words of Morrison, the court should not burn its bridges by terminating spousal support when not justified by the evidence. We do not suggest that the trial court‘s idea of how to resolve the contested
In the instant case the trial court committed reversible error when it failed to retain jurisdiction over future spousal support after this 24-year marriage when there was no finding, nor any evidence to support a finding that Prietsch would be able to meet her financial needs at the time selected for termination of jurisdiction over spousal support. Even if the order terminating jurisdiction nine years in the future could be upheld, it was reversible error to unilaterally permit Calhoun to accelerate the termination date by payment of the present value of the payments ordered.
V
DISPOSITION
The order is modified to provide that J. Bryant Calhoun shall pay to Jeannette Prietsch the sum of $900 per month in spousal support commencing on January 1, 1985, and continuing until the death of either party, Jeannette Prietsch‘s remarriage, or further order of court, whichever shall first occur. Jeannette Priestch shall recover her costs on appeal, including reasonable attorney fees to be determined by the trial court. (Cal. Rules of Court, rule 26.)
Low, P. J., concurred.
HANING, J.—I respectfully dissent. The trial court has broad discretion in setting spousal support. (In re Marriage of Morrison, supra, 20 Cal.3d at p. 454; In re Marriage of Slater (1979) 100 Cal.App.3d 241, 249;
There is some difficulty in reviewing the challenged support order herein due to the manner in which the parties presented the case below, thereby
The trial court found that “substantial changes of circumstances” occurred for both parties. It then found a “significant differential” between the earning ability and financial needs of the parties and that Ms. Prietsch‘s needs outweighed her ability to earn through employment or through a reasonable return on investment of her separate property.
The record supports the trial court‘s finding concerning a reasonable return on investment of Ms. Prietsch‘s separate property. Although she had a substantial sum on deposit, she was saving it to purchase a home for herself and the trial court could have deemed this to be a reasonable allocation of that resource. It is also undisputed that Dr. Calhoun earns substantially more than Ms. Prietsch. However, in construing the court‘s finding concerning the change of circumstances and Ms. Prietsch‘s earning ability, I interpret the trial court somewhat differently than the majority.
During the hearing below, it was not seriously disputed that Ms. Prietsch was capable of earning a higher salary. However, she refused to work in private industry and, for personal political reasons, also refused to work for any agency or entity which was involved with the “defense” industry. In addition, although her reasons for doing so are undisclosed, it was stressed that she had chosen to relocate her permanent home in a country where she could not speak, read nor write the national language. As a result, she had to undergo a substantial period of acclimation in order to maximize her earning potential. By the time of the hearing at issue she had apparently overcome most of the difficulties she encountered upon her initial move to Sweden. As a consequence, I read the trial court‘s reference to her change in circumstances to refer to her substantial adjustment to the Swedish employment market, and its reference to her ability to meet her needs to reflect its concern with her then present earning capacity, rather than a finding that she is unable to earn more in the near future. Given this interpretation, it cannot be said that a stepdown order is entirely inappropriate.
My interpretation of the findings is further bolstered by the fact that Ms. Prietsch did not argue to the trial court that a stepdown was unsupported.
Reading the trial court‘s comments in context, it appears to me that it understood the law and its obligations. It contrasted the instant case with Morrison, which involved a 54-year-old woman ending a 28-year marriage with a health problem, no work history or job skills, and capable of earning only $100 per month. The trial court in the instant case noted the obvious difference between the supported spouse in Morrison and Ms. Prietsch: “But here we have a very unusual situation where [Ms. Prietsch] has incredible educational capability of supporting herself, capable of supporting herself in Sweden or here. Not capable of supporting herself in Sweden to the same degree of standard of living as the parties enjoyed when they were married. She is probably capable of supporting herself to that degree if she were here in the Bay Area. [¶] I cannot conceive of, with her education and her present age and her abilities, why in the course of time, . . . [s]he couldn‘t increase her income, increase her standard of living to a point very close to what she enjoyed as Dr. Calhoun‘s wife.” (See, e.g.,
The trial court‘s observations are supported by substantial evidence. Ms. Prietsch‘s contribution to the support of her parents and her average monthly air fare to the United States to visit them exceeded the amount of support she was then receiving. The fact that her parents were then in their mid-eighties supports a finding that her contribution to their support and her travel expenses will not be required by the time spousal support was ordered to end. She also anticipated purchasing a home in the near future. Given the fact that she had become reasonably fluent in Swedish, thereby increasing her earning ability, and that she would soon be able to purchase a home and move out of her small apartment, the trial court could also find that her income and lifestyle were subject to imminent improvement. I finally note that in spite of her request for a support increase, Ms. Prietsch was able to contribute to the support of another individual described only as a “friend,” to make charitable and political contributions, and to save a portion of her salary.
Finally, and most significantly, Ms. Prietsch‘s political commitments have led her to decline employment which is substantially more remunerative. No matter how laudable her beliefs, her former spouse cannot be made to bear the price. She should bear the consequences of her own voluntary actions. If, for example, she deemed it appropriate to simply abandon her employment in order to devote her full time, without pay, to the advancement of a political cause, can she seek an increase in support? By the same token, if she now wishes to leave Sweden and settle in Tokyo, must Dr. Calhoun
Another problem I have with the majority‘s disposition is that it fails to consider that the trial court‘s order regarding the amount of monthly support is related to its overall scheme. If the trial court cannot terminate support and jurisdiction under its present timetable, it might have exercised its discretion in some other fashion. That discretion does not lie with us, and we should not be establishing timetables or monthly allotments for support. I emphasize that, based on the trial record and the manner in which the case was argued before us, it appears that the parties and the trial court were operating under different assumptions and a different understanding of the facts than the majority‘s interpretation. They certainly agreed below that the trial court could rely upon and consider matters which they failed to place in the record. But even as to the evidence which is in the record before us, I conclude it is sufficiently substantial to support the court‘s order. If the majority‘s understanding is incorrect, Dr. Calhoun should be entitled to commence a new hearing below and lay out all the facts and clarify the findings. Support orders are best determined by the trial courts, rather than appellate tribunals.
I conclude the record is sufficient to establish a complete termination of support if the trial court felt it was appropriate to do so. If support can be terminated, the supported spouse cannot legitimately complain about a stepdown. It appears here that the trial court was attempting to ease the transition to self-sufficiency for Ms. Prietsch and, if so, the payoff portion of its order should be upheld. I concur with the majority that if the trial court determines that it should retain jurisdiction for a period of time, it cannot permit the supporting spouse to terminate jurisdiction by paying off the present value. To do so would remove the court‘s ability to respond to a change of circumstances within the original time period. However, I do not agree that lump-sum payments are improper per se, under all circumstances.
In conclusion, I would affirm, or at least remand the matter for clarification of findings and reconsideration under Morrison.