Cooper v. Cooper, 82-453.
| Decision Date | 15 February 1984 |
| Docket Number | No. 82-453.,No. 82-625.,82-453.,82-625. |
| Citation | 472 A.2d 878 |
| Parties | Richard M. COOPER, Appellant, v. Sabina K. COOPER, Appellee. Sabina K. COOPER, Appellant, v. Richard M. COOPER, Appellee. |
| Court | D.C. Court of Appeals |
Lawrence H. Schwartz, Washington, D.C., for Sabina K. Cooper.
Daniel G. Grove, Washington, D.C., with whom John A. Blazer, Washington, D.C., was on the briefs, for Richard M. Cooper. Richard M. Cooper also entered an appearance pro se.
Before MACK, PRYOR and BELSON,* Associate Judges.
This matter is before us on cross-appeals from an order of the Family Division of the Superior Court granting in part and denying in part a motion to increase child support. Mr. Cooper appeals the increase in child support and award of attorney's fees; Mrs. Cooper appeals the allocation of payments for psychiatric treatment for one of the children. In the interest of brevity, we will refer to Richard M. Cooper as appellant and to Sabina K. Cooper as appellee.
The parties were married in 1965 and have two children, ages nine and thirteen, from the marriage. In 1978, the parties entered into a comprehensive Separation and Property Settlement Agreement ("the Agreement") by mutual consent. Appellee later sued for divorce on the ground of voluntary separation and a judgment for absolute divorce was granted on May 16, 1978. This judgment ratified, confirmed and incorporated, but did not merge the Agreement.
The Agreement provided inter alia for joint custody of the two minor children, with residential custody to appellee. In addition, appellant agreed to pay the sum of $666 per month as undifferentiated alimony and child support. On December 21, 1981, the court, upon appellee's motion, increased combined alimony and child support payments to $1,445 per month. Further, the court denied appellee's claim under the Agreement for unpaid psychiatric bills. Lastly, the court ordered appellant to contribute $3,774.87 towards appellee's legal fees: $3,274.87 for the expenses related to the motion and $500 for previous legal fees as required under the Agreement.1 For the reasons stated herein, we agree with appellant that the trial court erred in modifying the level of alimony/support payments provided for in the Agreement. Therefore, we reverse in part and remand this case to the trial court for proceedings consistent with this opinion.2
The trial court, in its order, stated:
"Modification of a final decree of child support is justified only when the proponent of change bears the burden of proof that there has been a material change in the needs of the child or the ability of the parents to pay," Tennyson v. Tennyson, D.C.App., 381 A.2d 264, 265 (1977); Hamilton v. Hamilton, D.C.App., 247 A.2d 421 (1968). In determining whether circumstances have materially changed, there must be a comparison between the date of the original order and the date of the hearing. Mozick v. Mozick, D.C.App., 245 A.2d 643 (1968); Sheridan v. Sheridan, [267 A.2d 343 (D.C.1970)].
The court further noted that despite a policy favoring the private resolution of domestic disputes, Lanahan v. Nevius, 317 A.2d 521, 523-24 (D.C.1974), it retained jurisdiction to increase child support payments above those limits specified in a separation agreement. Id. at 524-25; cf. Sheridan v. Sheridan, supra. However, in so modifying the level of alimony/support payments here, the court applied the wrong standard when it determined that such a modification was justified.
Where the level of child support payments has been set by the court pursuant to a hearing, the standard by which to determine whether modification is justified is that used by the trial court. See Tennyson v. Tennyson, supra, 381 A.2d at 266, and cases cited therein. However, where the parties to a divorce choose voluntarily to settle their financial affairs and enter into a separation agreement covering a division of property and provision for support, a different standard is used to determine if modification is justified.
Generally, separation agreements are enforced "[i]n the absence of fraud, duress, concealment or overreaching. . . ." Lanahan v. Nevius, supra, 317 A.2d at 524 (quoting Davis v. Davis, 268 A.2d 515, 517 (D.C.1970)). However, we hold that the court is free to modify support payments set by an agreement if the party seeking modification shows (1) a change in circumstances which was unforeseen at the time the agreement was entered and (2) that the change is both substantial and material to the welfare and best interests of the children. Cf. Rice v. Rice, 415 A.2d 1378, 1383 (D.C.1980); Boden v. Boden, 42 N.Y.2d 210, 366 N.E.2d 791, 397 N.Y.S.2d 701 (1977). Although Rice involved an application for modification of custody arrangements in a decree incorporating a separation agreement, we are persuaded that the above standards which it employed are equally applicable to the situation where a party is seeking modification of support payments set by the agreement. Presumably, at the time of a separation agreement the best interests of the children are a paramount consideration. If, thereafter, the best interests of the children are threatened in a material way by circumstances unforeseen at the time of the agreement it is reasonable for a court to entertain a request for modification of either custody or support provisions. As to support, the best interests of the children must be assessed in the context of the standard of living to which the children have become accustomed. See Benvenuto v. Benvenuto, 389 A.2d 795, 799 (D.C.1978). However, a change in the parents' financial circumstances alone "cannot provide the basis for modifying a contract between the parties." Lanahan v. Nevius, supra, 317 A.2d at 524.3
In modifying the level of alimony/support payments set by the prior Agreement, the trial court applied the standard appropriate when payments previously have been set by a court. Because the standards involve components which are so distinct as to lead, conceivably, to different...
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