An award of spousal maintenance in Washington may generally only be modified if the party seeking modification can show a substantial change of circumstances. RCW 26.09.170(1). Under Washington case law, the change must not have been within the parties’ contemplation when the decree was entered. A former wife recently challenged a trial court’s denial of modification of her spousal maintenance.
According to the appeals court’s unpublished opinion, the parties entered into a separation agreement that required the husband to pay $4,000 per month and 40% of his annual bonus as spousal maintenance for seven years, starting February 1, 2014. The terms of the agreement were incorporated into a decree of legal separation, which was ultimately converted into a decree of dissolution.
By the terms of the agreement, the payments would end in January 2021. The ex-wife moved to modify the decree in December 2020. She alleged health issues had prevented her from working in her profession as an art teacher since spring of 2019. She also alleged the ex-husband’s salary had substantially increased since the separation.
She sought $4,500 in monthly spousal maintenance and 40% of the ex-husband’s annual bonus until she turned 70, and then $2,500 per month for the next 10 years. She alleged the ex-husband had a substance abuse disorder when they executed the separation agreement and that his recovery was an unanticipated change.
The ex-husband argued there were no unanticipated substantial changes in circumstances to support a modification. He also sought sanctions against the ex-wife for introducing evidence of his alleged substance abuse disorder.
The commissioner noted there was nothing in the separation agreement indicating the parties anticipated the ex-wife would continue working as an art teacher until she turned 70 or that the ex-husband’s alcoholism would continue. The commissioner concluded that “[a]n ailment which existed at the time of the decree should not provide the basis for a material change in circumstances.”
The wife had presented a letter from a doctor stating she was unable to meet the 50-pound lifting requirement for the school and that she could not walk on concrete floors all day. The commissioner concluded the ex-wife failed to meet the burden of showing she was unemployable. He determined the maintenance award should not be modified and awarded the ex-husband attorney’s fees. The judge vacated the award of attorney’s fees but adopted the other findings and conclusions of the commissioner.
The ex-wife appealed, arguing the trial court erred in denying her petition because her inability to keep teaching and the ex-husband’s increased income constituted a substantial change in circumstances. She argued the trial court erred in only considering the findings in the separation agreement and decree to determine the parties’ expectations at the time of the decree. The appeals court acknowledged the trial court was not limited to considering the information in the separation agreement and decree, but noted there was substantial evidence supporting the finding the income changes were not outside the parties’ contemplation when the decree was entered. In his response to the petition, the ex-husband stated there had not been discussions during mediation or discovery regarding any plans for the wife to retire at 70. His declaration stated the parties intended what the written agreement stated and the court ordered.
The ex-wife’s supplemental declaration stated it was her understanding the husband had abstained from alcohol and that had not been anticipated at the time of separation, the settlement agreement, or the decree. There was no other evidence regarding the ex-husband’s alcoholism. The appeals court pointed out the ex-wife’s statement was an ultimate conclusion without any supporting facts, so the trial court did not have to accept it. The appeals court also noted that an increase in the income of the spouse obligated to pay maintenance does not necessarily warrant modification. Additionally, evidence of the unilateral belief of one spouse is not sufficient to show that the potential change was not contemplated.
The trial court also found insufficient evidence to support the ex-wife’s claim she was unemployable. She argued she only had to show she was unemployable in her own line of work, but the appeals court disagreed. She provided a note from her doctor stating she could not do heavy lifting, but it did not provide information on whether she was able to perform other jobs or if she could do her teaching job with reasonable accommodations. The appeals court noted the doctor opined that some conditions may improve and others do not. There was no abuse of discretion in the trial court’s finding insufficient evidence of a substantial change in circumstances.
The appeals court distinguished the ex-wife’s case from the cases she cited. In Turner v. Turner, there was evidence the wife was unable to earn a living wage in any capacity due to arthritis and a very limited education. In In re Marriage of Spreen, the parties had anticipated the wife would be employed within four years, but she was not. She had evidence from three physicians that she was unable to maintain employment due to severe mental health issues. The Spreen appeals court found no abuse of discretion in the trial court’s finding she presented sufficient evidence of a substantial change in circumstances to support a modification.
The appeals court pointed out that a trial court is not required to grant a modification even if there is a substantial change of circumstances.
The wife also argued the trial court erred by not considering the factors in RCW 26.09.090. The appeals court noted a must consider those factors in ordering maintenance in a divorce proceeding. In a modification proceeding, the court only has to consider the factors if it determines there has been a substantial change warranting modification, not when initially determining whether to grant the modification. The trial court did not have to consider the factors because it found no substantial change in circumstances.
The appeals court denied the ex-husbands requests for sanctions against the wife and attorney’s fees. It also concluded evidence about the ex-husband’s alcoholism was relevant and not introduced for an improper purpose.
If you are considering pursuing a modification of spousal maintenance, and experienced Washington family law attorney can work with you to identify the evidence needed to show a substantial change in circumstances. Call Blair & Kim, PLLC at (206) 622-6562 to schedule your consultation.