Under Washington family law, spousal maintenance may generally only be modified upon a “substantial change in circumstances.” RCW 26.09.170. In considering whether a substantial change has occurred, the court should consider the spouse’s ability to pay in relation to the other spouse’s financial need. A substantial change must not have been contemplated when the original order was issued. A former wife recently challenged modification of the spousal maintenance her former husband was ordered to pay following loss of his job and reemployment.
At the time of the divorce in September 2017, the court found the husband was earning more than $10,000 per month net. The wife had retired after working for the armed forces for 40 years, and was unable to work due to health issues. Her net income was more than $4,000 per month. The court ordered the husband to pay the wife $3000 per month in spousal maintenance and noted it intended to equalize their standards of living.
The husband lost his job in December. He moved to suspend his spousal maintenance in February. The commissioner granted his motion and ordered him to notify the wife when he obtained employment. The husband got a job as a chief engineer in April but failed to notify the wife until July.
The commissioner ordered the husband to pay the wife $3,000 in maintenance for April and 40% of his gross monthly overtime wages up to $3,000 per month for any overtime between May and September.
The husband’s base pay was $33.61 and his overtime rate was $50.42. He worked a rotating schedule, meaning he worked six weeks on and then six weeks off. He was able to use his accrued paid time off during his off weeks. His net monthly base pay was about $4,300 and he was not guaranteed overtime.
At the October 2018 review hearing, the commissioner found no significant change in circumstances in the husband’s income. The commissioner reinstated the $3,000 per month maintenance, retroactive to May.
The husband moved for revision, arguing his employment was a significant change in circumstances. He asked the court to change his maintenance obligation to 40% of his gross overtime earnings. The superior court granted the motion, revising the maintenance obligation effective May 1, 2018. The wife appealed, arguing the court abused its discretion when it found a substantial change in circumstances.
The evidence showed the husband’s net take home base pay in November 2018 was about $4,300. He also received about $227 from the wife’s retirement annuity. The appeals court noted that the trial court could have found his net monthly base income was less than half his net monthly income at the time of the divorce.
The husband also presented evidence that he had been able to get extra hours in the summer of 2018 without having six weeks off. These extra hours were the result of exceptional opportunities and he did not know if he would get such overtime in the future. He also explained that he had to save the time he accrued to use during the off weeks.
The wife argued his income was not substantially decreased from what he earned at the time of the divorce, pointing to not just his base pay, but the overtime he had earned.
The appeals court found the wife did not show an abuse of discretion. The husband had presented sufficient evidence for the court to find there had been a substantial change in circumstances.
The wife also argued the husband’s change in employment was a “lateral change” with “comparable earnings” that did not constitute a significant change in circumstances. The appeals court disagreed, however. The original maintenance award stated the court may modify the maintenance award if the husband’s “ability to work becomes substantially impaired at a future date. . .” The appeals court found a change in employment and base pay had not been contemplated at the time of the original maintenance award.
The wife also argued the superior court failed to consider the husband’s ability to pay maintenance in relation to her financial needs. The appeals court noted the parties had submitted contradictory evidence, so there was no error in the court’s finding their base incomes were about the same and awarding the wife 40% of the husband’s overtime earnings. The appeals court found this award constituted a “roughly equal split” of the husband’s overtime earnings by accounting for taxes. The appeals court found the trial court had adequately considered the husband’s ability to pay in relation to the wife’s financial needs.
The appeals court affirmed the modification of spousal maintenance.
This case shows that a spousal maintenance order can be modified when a substantial change in circumstances occurs. If you are obligated to pay spousal maintenance but have lost your job since the original order, an experienced Washington family law attorney can help you seek modification. Call Blair & Kim, PLLC, at (206) 622-6562 to schedule a consultation.