Appeal from the Superior Court of the District of Columbia; (Hon. Zinora Mitchell-Rankin, Trial Judge)
Before Rogers, Chief Judge, and Terry and King, Associate Judges. Opinion for the court by Associate Judge King. Dissenting opinion by Chief Judge Rogers.
The opinion of the court was delivered by: King
In this domestic dispute, the former wife (hereinafter "wife") appeals from an order of the trial court reducing the amount of alimony to be paid to her by her former husband (hereinafter "husband"). She asks that this court reverse that order and find that there was no material change in circumstances. We affirm.
The parties were divorced in 1980 and the husband was ordered to pay monthly alimony in the amount of $652. In 1990 the husband moved in the trial court to reduce the amount of alimony to be paid by him. After a hearing, the trial Judge found that the husband had "demonstrated a change in circumstances with regard to (the wife's) need for alimony." Accordingly, she reduced the amount of monthly alimony from $652 to $352.
The wife challenges the trial court ruling claiming the court: (1) erred by ordering a reduction in alimony since there was insufficient evidence of a material change in either the husband's ability to pay or the wife's need of support, or both, and (2) abused discretion by reweighing the equities between the parties.
From the evidence presented at the hearing, the trial Judge concluded that the wife's annual income, other than alimony, was $30,756. The principal source of income was her employment with a travel agency; however, there were additional sums received for rent, interest and dividends. The court also found that, after reasonable monthly expenses and taxes were subtracted, the wife's monthly surplus was $140.
In contrast, the court also found that at the time of the divorce, the wife was unemployed. *fn1 Although the wife disputed that finding at the hearing on the instant motion, the trial court did not credit her testimony on that point in light of certain contradictory statements that had been made by the wife. The court concluded that at the time of the divorce, when the initial alimony award was made, any earnings of the wife were "considerably less than the salary and earning she currently has." There is support in the record for that finding and we have no basis for disturbing it.
Based on the above finding, the trial Judge held that the husband had "demonstrated a change in circumstances with regard to the [wife's] need for alimony," concluding it would be fair and just to reduce the amount of alimony from $652 per month to $352 per month.
In reaching its Conclusion, the trial Judge relied upon Alibrando v. Alibrando, 375 A.2d 9 (D.C. 1977). The wife agrees that case correctly sets forth the standards that are applicable in a proceeding, such as this one, where one spouse seeks to modify the amount of alimony to be paid to the other spouse. Alibrando incorporated, id. at 12, the written opinion of the trial court which observed:
Again, the court emphasizes that the rule in this jurisdiction is that only substantially changed circumstances and conditions of the parties warrant a modification of a decree of divorce. Thus in order to reduce or terminate alimony payment, the husband must show a change either in respect to his ability to support his wife or the wife's need or such support or both.
Id. at 15 (emphasis added). The antecedent reference emphasized by this passage is the quote from Tydings v. Tydings, 349 A.2d 462, 463 (D.C 1975), that is set out at the beginning of the opinion of our Dissenting colleague. *fn2
In this case, Judge Mitchell-Rankin, citing the language quoted above, concluded that this court had established the rule that "the proponent of the modification must show a change in circumstances either with respect to the husband's ability to pay support or in the wife's need for support or both." FINDING OF FACT, CONCLUSIONS OF LAW AND ORDER MODIFYING ALIMONY 26 (emphasis added). *fn3 Unlike our Dissenting colleague, we are confident that under these circumstances the trial Judge was fully aware that the husband was obligated to show more than a simple change in circumstances in order to obtain the relief he was seeking. Indeed, on the issue of change in the wife's income, the trial Judge found her income at the time of divorce to be "considerably" less than her current income.
In sum, we are satisfied that there is factual support for the finding made by the trial court with respect to both the wife's income at the time of the divorce and her income and expenses at the time of the hearing on this motion. We are also satisfied, based upon her reliance upon applicable authorities, that the trial Judge was fully aware of the burden imposed upon the husband and there is ample support for her Conclusion that the requisite change in ...