In re Marriage of Hibbard, the trial court decided that disability could not become a reason for the modification of a marital agreement.
By Garrett C. Dailey, family law specialist
FACTS: H is a decorated Vietnam combat veteran. He began suffering symptoms of posttraumatic stress disorder (PTSD) in 1970, which only fully manifested itself in 2011. H and W married in 1971 and separated in 2001 after 30 yrs. of marriage. Both parties were lawyers, although W worked as a school teacher. H was earning $84,000/yr. and W $24,000/yr.
They negotiated an MSA which recited that both were in good health and that they entered into the agreement voluntarily. H agreed to pay W $4,000/mo. family support until younger child reached 18 and residence was sold, after which it would be modified to an amount mutually agreed upon, “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 [H], and will only terminate upon [W’s] death or remarriage, or the death of [H].”
In re Marriage of Hibbard: Does Disability Count as a Reason for Modificatioin
In 2012, H filed a motion to terminate s/s, alleging he had recently been formally diagnosed with PTSD in 12/11, was currently unable to work more than 2 or 3 hours per day, had to borrow $25,000 to keep his practice running and had a $39,000 tax lien. He was going to apply for a service-connected disability. He argued that neither party contemplated becoming disabled. In a subsequent declaration, H stated that he was shutting down his practice and hoped to receive $2,940/mo. disability income and $1,100/mo. from Social Security.
W opposed H’s request, stating that she was 63 and entitled to $965/mo. teacher’s retirement, $773 Social Security and suffering from a potentially blinding eye ailment. She stated that she could not make ends meet without s/s.
Trial ct. held that while it had jurisdiction over spousal support, it was constrained by the parties’ agreement that s/s could not be less than $2,000/mo. and denied H’s motion. The Court of Appeal affirmed.
HELD: Parties may limit trial ct.’s jurisdiction to modify spousal support; MSA provision that states that s/s may “not be less than” $2,000/mo. precludes modification upon payor’s subsequent disability.
MSAs are interpreted according to the laws of contracts generally:
“ ‘ “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 . . . .” ’ ” (In re Marriage of Hibbard, supra, 212 Cal.App.4th at p. 1013.)
The focus is on ascertaining and implementing the parties’ mutual intent when they entered into the settlement.
Although s/s orders are generally modifiable, parties may limit the court’s jurisdiction in their agreement. Family Code section 3651 specifically permits parties to enter into nonmodifiable support agreements:
“[A] court’s spousal support jurisdiction is limited by other events set forth in the statutory scheme. For example, as relevant here, a spousal support agreement ‘may not be modified or revoked to the extent that a written agreement specifically provides that the spousal support is not subject to modification or termination.’ ” (In re Marriage of Hibbard, supra, 212 Cal.App.4th at p. 1014.)
If the parties have agreed that a support order is nonmodifiable, “[t]he court may not simply reevaluate the spousal support award.” (In re Marriage of Hibbard, supra, 212 Cal.App.4th at p. 1014.)
There was no need for the MSA to contain specific language precluding judicial modification:
“It is well established that no specific formula or ‘magic words’ are required to preclude modification.” (In re Marriage of Hibbard, supra, 212 Cal.App.4th at p. 1017.)
The language in the parties’ MSA was specific and expressly provided that “in no event” would s/s be less than $2,000/mo. Thus, as a matter of law, the s/s order in the MSA was not modifiable or otherwise subject to termination until one of the stipulated circumstances occurred, i.e., the death of either party or W’s remarriage.
NOTES: This case not final as of the closing date of this volume. Prior to citing this case, user should verify its official publication status. (See CRC, rule 8.1115.)
COMMENT: The opinion contained sage warnings to MSA drafters “of the consequences resulting from the lack of careful draftsmanship.” It advised: “when drafting marital settlement agreements, 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.” (In re Marriage of Hibbard, supra, 212 Cal.App.4th at p. 1015.)
Garrett C. Dailey is a Certified Family Law Specialist focusing on appellate issues and consultations, a Fellow in American Academy of Matrimonial Lawyers and publisher/co-author of ATTORNEY’S BRIEFCASE® CALIFORNIA FAMILY LAW, California’s oldest provider of self-contained legal research software. BriefCase is available online and through the Attorney’s BriefCase iPad® app. For more information visit them at www.atybriefcase.com. Also check out their FREE legal education log at www.MyLegalEducationLog.com.