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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 ...

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