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June 7, 1991


Appeal from the Superior Court of the District of Columbia; Hon. Gladys Kessler, Trial Judge

Terry, Associate Judge, Gallagher and Mack, *fn1 Senior Judges. Concurring opinion by Senior Judge Gallagher. Opinion Concurring in part and Dissenting in part by Associate Judge Terry.

The opinion of the court was delivered by: Per Curiam

This is an appeal from an order modifying an award of alimony and child support. At issue is whether an increase in the non-custodial parent's ability to pay can, by itself, constitute a material change in circumstances sufficient to justify an increase in support. We conclude that it can and reverse the order of the trial court.


In March 1982, after twenty years of marriage, the parties divorced. Pursuant to the divorce decree, Mr. Graham was ordered to pay Mrs. Graham alimony of $250 per week and child support of $375 per week ($125 for each of their three children); in addition, he was to pay half the monthly mortgage on the marital home and all private school tuition for the children. At about the time the judgment of absolute divorce was entered, Mr. Graham signed a new contract with his employer which provided for significant salary increases. *fn2 Mr. Graham had been earning approximately $100,000 in salary in 1981; under the new contract, his salary was to be raised to $185,000 in 1982; $210,000 in 1983; $230,000 in 1984; and $255,000 in 1985. In August 1982, after negotiations between the parties about increasing support payments in light of these salary increases had broken down, Mrs. Graham filed a Motion to Enforce Agreement or in the Alternative for Increased Alimony and Child Support.

On July 27, 1984, after a three-day evidentiary hearing, the trial court issued a Memorandum Opinion and Order in which it held, inter alia, that an increase in the non-custodial parent's income, no matter how great, was, by itself, an insufficient basis upon which to modify a support order. Relying on Sheridan v. Sheridan, 267 A.2d 343 (D.C. 1970), the trial Judge stated that in order to prove a "material change in circumstances" sufficient to justify an increase in support, Mrs. Graham was required to demonstrate that the needs of herself and her children had increased since the original support order was entered; only after this threshold showing was made would Mr. Graham's increased ability to pay be taken into account. Nonetheless, the trial court found that there had been a modest increase in the needs of Mrs. Graham and the children and that Mr. Graham had the financial resources to contribute toward meeting those needs. The court thus increased Mr. Graham's child support obligation $15 per week per child to $140 per week per child. In addition, the court ordered that the alimony paid to Mrs. Graham be increased from $250 to $350 per week; however, as Mrs. Graham was at the time attending law school part-time and was expected to complete her studies in the spring of 1986, the court ordered that the alimony be decreased to $200 per week beginning in September 1986. Mrs. Graham was also awarded $1,000 in attorney's fees. *fn3


Mrs. Graham, supported by amicus, asserts that the trial court applied an incorrect legal standard in modifying the original support order and thus unfairly limited the amount of the increase. She contends that an increase in the non-custodial parent's ability to pay can, by itself, provide a proper basis for an increase in support, beyond or without any proven increase in the needs of the children or the other spouse. We agree. *fn4

An original support order may be modified only upon a showing that there has been a material change in the circumstances of the parties. *fn5 Hamilton v. Hamilton, supra note 5, 247 A.2d at 422. In Hamilton, we stated that a material change in circumstances can be "a change which affects either the [parent's] ability to pay or the needs of the minor children," id. at 422-23 (emphasis added), and we have reiterated this disjunctive standard in several subsequent decisions. See, e.g., Burnette v. Void, 509 A.2d 606, 608 (D.C. 1986); Wright v. Wright, 386 A.2d 1191, 1195 (D.C. 1978); Tennyson v. Tennyson, supra note 5, 381 A.2d at 266. *fn6

Nonetheless, the trial court was correct in noting that there is language in Sheridan, which suggests that the Hamilton standard is limited to cases in which the non-custodial parent's ability to pay decreases and further suggests that where the parent's resources increase, that only the second prong of the test, the increased needs of the children, is a proper basis for modification. Sheridan, supra, 267 A.2d at 346-47. As we later observed in Tennyson, however, these statements were merely dicta, as there was no evidence in Sheridan that the non-custodial parent's income had in fact increased. Tennyson, supra, 381 A.2d at 266 n.3. Moreover, as we went on to explain in Tennyson, the statements in Sheridan "appear[] overcome by . . . subsequent legislative mandate." Id. D.C. Code § 16-916(a) (1981) requires courts to consider both parents as potential sources of support, and "to ignore a change, occasioned by increase in the [non-custodial parent's] income, in the relative abilities of the parents to support their child would seem inconsistent with this mandate." Tennyson, supra, 381 A.2d at 266 n.3. Thus, given the subsequent development of the law, we consider the language in Sheridan to be a mere aberration and, as dicta, not controlling of our decision in this case.

Having put the dicta in Sheridan aside, we cannot find that the procedure followed by the trial court comported with the standard for modification set forth in Hamilton. Hamilton and its progeny make clear that a material change in either the parent's income or in the needs of the children and the other spouse may be the basis for modification of the support order. See Hamel v. Hamel, 539 A.2d 195, 199 (D.C. 1988). By insisting that there could be no increase in support without a commensurate increase in the needs of Mrs. Graham and the children, the trial court effectively nullified the first prong of this standard. *fn7

Nor do we see any reason to apply a different standard where the parent's income increased and where it is decreased. To adopt such a distinction would mean that children would have to bear the burden of a lowered standard of living when their parent's income declined but could not share the benefit when that parent's resources grew -- a situation for which we perceive little, if any, sensible justification. *fn8

Furthermore, we think it proper that a material increase in the non-custodial parent's income can be the basis for an increase in child support. Although spouses may divorce, the children's legal relationship with both parents continues, and "the children's station in life should not therefore be fixed forever to their parents' station in life at the time of the divorce." Cole v. Cole, 44 Md. App. 435, 409 A.2d 734, 741 (Md. App. 1979). We think it appropriate that a trial court may act to ensure that where there is a material increase in non-custodial parents' financial resources, that these parents do not increase their own standard of living without also ensuring that their children live as well as they. *fn9

We note finally that the considerations which go into an award of alimony differ somewhat from those which determine child support. In this jurisdiction, parents, for example, have "an unqualified obligation to contribute to the support of their children." Burnette, supra, 509 A.2d at 608; see also District of Columbia ex rel. W.J.D. v. E.M., 467 A.2d 457, 460 (D.C. 1983). By contrast, an award of alimony to a former spouse is a matter left to the discretion of the trial court, Leftwich v. Leftwich, 442 A.2d 139, 142 (D.C. 1982), and considerations other than a pure calculus of need and ability to pay (such as the length of marriage and the age of the parties) enter into the initial decision. See McEachnie v. McEachnie, 216 A.2d 169, 170 (D.C. 1966). While we may assume that in the vast majority of cases, the relationship between spouses does not survive after divorce to the same degree that the parent-child relationship does, by law the decree granting alimony, just as does the decree providing for child support, remains open for modification. See D.C. Code § 16-914(a); Tydings v. Tydings, 349 A.2d 462 (D.C. 1975). A former spouse seeking an increase in alimony bears the burden of showing that an increase is justified. There must be "a showing of a substantial and material change in the conditions and circumstances of the involved parties since the entry of the decree." Id. at 463. A modification of alimony "must reflect changed needs or changed financial resources" (as opposed to "offensive" conduct on the part of the receiving spouse). Alibrando v. Alibrando, 375 A.2d 9, 15 (D.C. 1977). While it may deter marriage, or divorce, or both, to contemplate that the increase in the income of one divorced spouse, standing alone, will provide justification for an increase in support payments to the receiving spouse, a blanket rule precluding spouses from sharing in the increased resources of their former partners would be unacceptable. It may be, for example, that the spouse receiving support has contributed during the marriage so as to be partly or wholly responsible for the other spouse's subsequent income. Or, at the time of the divorce, there may have been insufficient resources for both spouses to maintain their previous standard of living, and the subsequent increase in the income of the spouse paying support might be used to meet the pre-existing, though previously unmet, financial needs of the other spouse. In short, there may be circumstances, though unusual, in which it may be appropriate for the trial court to award increased alimony where only the income of the paying spouse, and not the needs of the receiving spouse, have increased. In any event, this is a matter for the trial court, marshalling the facts pursuant to correct legal standards.


Therefore, we reverse the trial court's order modifying the prior alimony and support orders and remand for further consideration in light of this opinion. We note that Mrs. Graham also challenges the award of attorney's fees as inadequate. In view of our reversal of the support modification in this case, we think it proper also to vacate the award of attorney's fees and remand for further consideration. See Cooper v. Cooper, 472 A.2d 878, 881 (D.C. 1984); Owens v. Owens, 427 A.2d 933, 939 (D.C. 1981). Finally, as seven years have passed since the entry of the original modification order, we leave it to the trial court's discretion whether to (1) reopen the record on remand for evidence of further changes in the parties' financial circumstances since that time or (2) issue a revised order based on the facts as found at the time (and any further findings necessary to the decision) which comports with the standards set forth herein, and then allow the parties to file motions for further modifications as they feel necessary. See Trezevant v. Trezevant, supra, 403 A.2d at 1139.

Accordingly, the order of the trial court is

Reversed and remanded.

GALLAGHER, Senior Judge, Concurring: It seems to me that the Dissenting opinion misconstrues the majority opinion and the supporting decisions there cited. The majority opinion simply holds, among other things, that where the financial situation of the father (or former husband) has improved since the original decree, upon application either the mother or the children, or both, are entitled to a review of the amounts of their alimony and child support payments to determine if an increase is warranted. The Dissenting opinion seems to state that such a review, as a matter of law, must be restricted to child support payments only and may not reach support payments of mothers (or former wives). We, on the other hand, see no reason in logic nor in our decisions to so restrict the review by the trial Judge upon application by former spouses.

The Dissenting opinion addresses itself to the evidence on this score. We, on the other hand, are addressing only the law on the question. We think the evidentiary aspect is for the trial court after being advised on the controlling law.

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 Hamilton 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). *fn1 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 6, that these statements were merely dicta. The obligation of a parent in the District of Columbia to support his or her minor children *fn2 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, *fn3 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. *fn4

Mrs. Graham's claim for an increase in alimony is an entirely different matter. My colleagues apparently acknowledge, ante at 8-9, 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 obligations . . . . 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 greater significance is the fact that, after he obtained a considerably more lucrative contract with [his employer] in March 1982, 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 2 1/2 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 2 1/2 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 children. . . . It 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). *fn5 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 paying 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), *fn6 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.

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