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In Re the Marriage of Howard L. Hibbard and Lydia H. v. Lydia H. Hibbard

January 15, 2013

IN RE THE MARRIAGE OF HOWARD L. HIBBARD AND LYDIA H. HIBBARD. HOWARD L. HIBBARD, APPELLANT,
v.
LYDIA H. HIBBARD, RESPONDENT.



Trial Court: Alameda County Superior Court Trial Judge: Honorable Thomas J. Nixon Super. Ct. No. CH220577

The opinion of the court was delivered by: Baskin, J.*fn6

CERTIFIED FOR PUBLICATION

Alameda County

Howard L. Hibbard (Howard)*fn1 appeals from an order denying a modification of his obligation to pay his former wife, Lydia H. Hibbard (Lydia), spousal support of $2,000 per month. When the parties, who are both lawyers, divorced, their written agreement required Howard to pay to Lydia spousal support in an amount of $4,000 per month, and it allowed for a downward modification under certain limited circumstances "but shall not be reduced to an amount of less than two thousand dollars per month . . . ." Several years later, Howard became completely disabled and sought to modify the spousal support order by invoking the court's inherent jurisdiction to modify it. (See Fam. Code, § 3591.)*fn2 The trial court concluded it retained jurisdiction to modify the agreement, but denied relief to Howard based on the absence of any of the very limited circumstances permitting modification of the agreement. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Howard is a combat Vietnam veteran with two Bronze Stars for valor in ground combat. As a result of his service in Vietnam, he has suffered from post-traumatic stress disorder (PTSD) since 1970. According to his psychotherapist, Howard became totally disabled in 2011, as a result of his PTSD. In 1971, some time after Howard's honorable discharge, the parties married; they separated in 2001 after nearly 30 years of marriage. They had two children, neither of them minors now.

In 2002, the parties negotiated a marital settlement agreement (MSA) and according to it, both were in "good health" and employed, with Lydia earning $27,000 and Howard earning $84,000 per year. The MSA was attached to and incorporated into the judgment of dissolution that included the following support agreement: "FAMILY SUPPORT: [Howard] shall pay to [Lydia] by the 5th day of each month the sum of $4,000 per month. Said payments may be reduced to an amount to be mutually agreed upon by [Howard] and [Lydia], after [minor child] reaches the age of eighteen, graduates from high school and the family residence is sold. Such a reduction will be based upon a change of living expenses for [Lydia], 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 [Howard], and will only terminate upon [Lydia's] death or remarriage, or the death of [Howard]. [Howard] waives all right to support, now or in the future." (Italics added.) The MSA also included the following provisions: "VOLUNTARY AND INFORMED CONSENT: The parties further acknowledge and agree that they enter into this agreement voluntarily, free from duress, fraud, undue influence, coercion, or misrepresentation of any kind. [¶] . . . [¶] MODIFICATION, REVOCATION OR TERMINATION: This agreement may be altered, amended, modified, revoked, or terminated only by an instrument in writing expressly referring to this document by paragraph to be modified and signed by both parties. Both parties waive the right to claim, contend or assert in the future that this agreement was modified, canceled, superseded or changed by oral agreement[,] course of conduct, or estoppel in the future. [¶] . . . [¶] INVALIDITY; SEVERABILITY: This agreement has been jointly negotiated by and between both parties and shall not be construed against either party. If any term, provision or condition of this agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions shall remain in full force and effect and shall in no way be affected, impaired or invalidated."

In May 2002, Lydia's support was reduced to $2,000 per month, when the parties' daughter turned 18 years old. At some point, the family residence was sold.

On February 10, 2012, Howard filed a motion to terminate spousal support, alleging that in December 2011 he had been diagnosed with PTSD, relating to his service in Vietnam, and that he was currently unable to work more than two to three hours per day. Howard also alleged in 2012 that he had to borrow $25,000 in order to keep his law practice running and to pay for spousal support; he also had a federal tax lien against him in the amount of $39,000.

In his declaration, Howard indicated he would be applying for "a service connected disability," which he estimated would take over one year to determine his eligibility. Howard alleged that Lydia's income had increased to $36,000 per year. He alleged that the parties' circumstances had changed and the possibility of either of them becoming disabled was neither contemplated by the parties nor reflected in the MSA. Howard further declared that his legal business had declined "due to the recession and impact on real property," such that his income had been reduced to $38,000 per year--an amount he did not expect to improve. His income and expense declaration stated that his income was $4,000 per month and his expenses were $7,542 per month. Howard later declared that he was shutting down his law practice and that he hoped to receive disability income of $2,940 per month plus Social Security of $1,100 per month for a total of $4,040 per month. He attached his application for Veteran Benefits Administration disability benefits.*fn3 By reason of the foregoing, he asked that his spousal support be terminated.

Lydia responded by noting that Howard's law practice grossed $207,760 in 2010, the last year for which he had provided records. From that revenue, he had paid his current wife's salary and $1,200 per month in continuing education expenses. Lydia explained her current financial situation as follows: She was 63 years of age and entitled to a teacher's retirement of $965 per month, which when added to her Social Security benefits of $773, would be insufficient for her needs without support. She explained how she worked 52 hours per week, ten months of the year and was just barely surviving with her teacher's salary and spousal support. As a result, she had to meet unexpected expenses with her equity line or credit card. Additionally, she was being treated for a serious, and potentially sight terminating, eye condition. Lydia worried that her future was clouded by the possibility of blindness and asked the court to deny Howard's motion.

The matter was heard on declaration and oral argument on May 17, 2012. The trial court determined that it had jurisdiction and that even though Howard's circumstances were different now, support was subject to an agreed-upon floor of $2,000 per month that was an enforceable and non-modifiable order. Howard's motion to terminate spousal support was denied.

Howard filed this timely ...


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