Washington Court Finds Decision Not to Retire Is Substantial Change Supporting Modification of Spousal Maintenance

Once a Washington divorce decree is issued, a maintenance award can only be modified by the court when the party seeking the modification shows a substantial change in circumstances.  A fact unknown to the trial court or an unanticipated fact that arises after the decree is entered may constitute a substantial change in circumstances.  In a case involving spousal maintenance, commonly referred to as “alimony,” a substantial change may involve a significant increase or decrease in income.  In a recent case, the ex-wife sought to continue maintenance when her ex-husband decided not to retire at the time they had previously expected him to do so.

The divorce decree required the husband to pay spousal maintenance in the amount of $1100 per month for 48 months.  The wife sought to extend the maintenance four years later.  She alleged there was a substantial change in circumstances because the husband had not retired from the military as she had expected.  If he had retired, she would have started receiving part of his retirement benefits when the maintenance payments stopped.  She provided an email from the husband in which he stated he would pay the maintenance “until [he] got out.” The husband told her he was not ready to retire in December 2016, and suggested he would not do so until 2019.  The wife requested the maintenance continue until the husband’s retirement. She also requested attorney fees in her reply declaration.

The commissioner denied the wife’s motion, finding no substantial change in circumstances.  The commissioner also granted the husband’s motion to strike the wife’s request for attorney’s fees and denied the request.

The wife moved for revision of the commissioner’s order on both issues.  She argued the commissioner erred in both striking and denying the motion for attorney’s fees. The superior court denied the husband’s motion to strike the request for attorney fees and gave the husband additional time to respond to the request.

The superior court ultimately granted the motion for revision, finding the husband’s decision not to retire was a substantial change in circumstances.  The court ordered him to continue paying $700 per month in maintenance until he retired from the military.  The court also granted the wife’s request for attorney fees.

The husband appealed, arguing the court abused its discretion in finding a substantial change in circumstances.

The superior court had found the parties did not anticipate that the husband would stay in the military after he reached 20 years of service.  The court therefore found the decision not to retire was a substantial change in circumstances.  The appeals court agreed, finding this decision was not anticipated when the decree was entered, so the superior court had not abused its discretion in finding it was a substantial change.  The appeals court affirmed the order granting the revision.

The appeals court reversed the order awarding attorney fees, finding the superior court erred in hearing new evidence.  The superior court should instead have remanded the case back to the Commissioner.

If you are anticipating a divorce or seeking or opposing a modification, an experienced Washington family law attorney can help you.  Call Blair & Kim, PLLC, at (206) 622-6562 to set up a consultation.