Hamel v, Hamel

• Decision Date: 15 March 1988
• Docket Number: No. 86-1305.,86-1305.
• Citation: 539 A.2d 195
• Parties: Dora M. HAMEL, Appellant, v. Charles HAMEL, Appellee.
• Court: D.C. Court of Appeals

Page 195

539 A.2d 195

Dora M. HAMEL, Appellant, v. Charles HAMEL, Appellee.

No. 86-1305.

District of Columbia Court of Appeals.

Argued December 3, 1987.

Decided March 15, 1988.

Jo Wiese, Washington, D.C., for appellant.

Laurence M. Kahn, Washington, D.C., for appellee.

Before MACK, TERRY and ROGERS, Associate Judges.

ROGERS, Associate Judge:

Appellant Dora M. Hamel appeals the termination of support payments from appellee Charles Hamel pursuant to a separation agreement which was incorporated and merged into a consent order. Her principal contentions are that the trial court applied the incorrect standard in deciding to terminate her support payments or, alternatively, abused its discretion in applying the correct standard. We hold that spousal support set forth in a voluntary separation agreement that is merged into a consent order is subject to modification by the court upon a showing by the movant of a material change in circumstances, and that the trial court therefore applied the correct standard. However, because a motion to modify support set by a court order is not the occasion to reweigh the equities between the parties, and the trial court did so, we hold that the trial court abused its discretion; accordingly, we reverse.

I.

The parties were married in 1966 in the District of Columbia and continued to live here until they separated on July 21, 1975. On March 4, 1976, Mr. Hamel obtained an ex parte divorce in Alaska. The next week Mrs. Hamel filed in the District of Columbia for divorce, child support, alimony and other relief. On June 14, 1976, the parties entered into a separation and property settlement to settle "all rights." The sixteen-page agreement gave full faith and credit to the Alaska divorce and included eight separate articles concerning alimony and child support, property, insurance, release and waiver, attorneys' fees, and merger and enforcement; each party was represented by counsel in the preparation of the agreement. On November 17, 1976, a consent order incorporating and merging the separation agreement was filed in the trial court.

Nine years later Mrs. Hamel filed a motion to collect $12,952.72 in arrearages in support payments for the period February to October 1985. Mr. Hamel responded by filing a motion for child support, termination of alimony and other relief, and sought denial of the motion for arrearages. The trial judge granted Mrs. Hamel's motion for arrearages, and thereafter denied Mr. Hamel's motion for reconsideration. In regard to Mr. Hamel's motion to terminate alimony, Mrs. Hamel filed an opposition on the grounds that the requested termination failed to come within the terms of the separation agreement, which specified when support could be terminated, and that Mr. Hamel had not suffered a material change in circumstances since the previous reduction of support upon court transfer of custody of the parties' two children from Mrs. Hamel to Mr. Hamel on October 13, 1982. See Hamel v. Hamel, 489 A.2d 471 (D.C. 1985) (affirming transfer of custody). Following evidentiary hearings, the trial judge granted Mr. Hamel's motion to terminate his support of Mrs. Hamel. Hamel v. Hamel, 114 Daily Wash.L.Rptr. 1941, 1947 (D.C.Super.Ct. Aug. 4, 1986).

In a memorandum opinion, the trial judge found that Mr. Hamel had demonstrated "a material change in the circumstances of the parties since the consent order requiring that the payments be made was issued." 114 Daily Wash.L.Rptr. at 1941. The judge referred specifically to the 1982 change in custody of the parties' children, the demise of Mr. Hamel's business ventures and consequent reduction of his income and change in his life style,¹ and his present indebtedness. Id. at 1946. Rejecting Mrs. Hamel's contention that the evidence demonstrated that Mr. Hamel's present financial condition was the result of his voluntary actions, the judge found that Mr. Hamel's

efforts to expose the alleged illegal activities of the oil company which had terminated his contract seem[] totally reasonable, since [Mr. Hamel] testified that the efforts he took were for the purpose of re-establishing himself in the oil business, which had been extremely lucrative for him. Moreover, the Court concludes that [Mr. Hamel] has taken reasonable steps to earn income by other means while pursuing the dispute with the oil company, having sought to establish a business in the structured settlement field.

114 Daily Wash.L.Rptr. at 1946 n. 8.

The judge further found that Mrs. Hamel was "a well educated, intelligent and healthy 51 year old woman [who] holds two temporary jobs and has the ability to earn an income in a number of different areas." Id. at 1947. In the judge's view she "could earn a minimum of $13,500 per year with her existing skills [and] the evidence actually suggested that [she] could make substantially more in the present job market." Id. at 1947 n. 17. Comparing the parties' financial needs and obligations, the judge noted that Mr. Hamel

is the sole source of support for the children's financial needs [while] [Mrs. Hamel] has no present obligation to monetarily contribute toward the children's support, and in fact has not done so, has the ability to work and earn an income and has assets which she can utilize to provide for her financial needs.²

114 Daily Wash.L.Rptr. at 1947. The judge therefore concluded that

the payment of the alimony award has become `unduly burdensome,' Tinney v. Tinney, [209 A.2d 927 (D.C. 1965)]; that [Mr. Hamel] needs all of the funds he can muster to provide for his present family's financial needs; and, that [Mrs. Hamel] has the financial means to independently provide for herself. . . .

Id. at 1947. He therefore terminated all of Mrs. Hamel's support payments.

II.

Mrs. Hamel contends that the trial judge applied the incorrect standard in terminating her support payments, or, alternatively, that he abused his discretion in applying the correct standard. She maintains that because the consent order adopted the parties' voluntary separation agreement, the trial judge should have required Mr. Hamel to meet a burden of proof that was the equivalent of that in Cooper v. Cooper, 472 A.2d 878 (D.C. 1984), and not the equivalent of the burden in Hamilton v. Hamilton, 247 A.2d 421 (D.C. 1968).³ Alternatively, she maintains that the trial judge erred in failing to require that a modification of the level of support must give deference to the balance of equities established in the consent order.

The trial judge, referring to Albus v. Albus, 503 A.2d 1229 (D.C. 1986), ruled that Mr. Hamel would have to show a material change in the circumstances of the parties in order to justify any modification of the support payments, applying the equivalent of the standard in Hamilton, supra, 247 A.2d 421 (modification of original order of child support allowed upon showing of material change in circumstances), and not that in Cooper, supra, 472 A.2d at 880, which held that child support payments set by a voluntary separation agreement incorporated but not merged into a divorce decree could be modified only if the party seeking modification could show (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.

In Albus, supra, 503 A.2d at 1231, this court distinguished the situations in which the Hamilton and Cooper standards apply. If the court enters the original order of child support, then the Hamilton standard applies to requests for subsequent modification. But, if the support is paid pursuant to a voluntary separation agreement incorporated but not merged into the divorce decree, then the more restrictive Cooper standard applies. The rationale adopted by the court in Cooper for the more rigid standard in cases of voluntary separation agreements was that the Cooper standard assumes that the parties voluntarily agreed to be bound by the specific terms of the agreement. Albus, supra, 503 A.2d at 1231; Cooper, supra, 472 A.2d at 880. A further premise was that at the time of the separation agreement, the best interests of the children were a paramount consideration. Albus, supra, 503 A.2d at 1231.

Article III of the separation agreement/consent order provided that Mr. Hamel would make a monthly unitary payment of $3,200 for the support of Mrs. Hamel and their two children.⁴ This paragraph also listed the circumstances which would necessitate a modification of support. Included were adjustments based on the consumer price index "in contemplation of Mr. Hamel's receiving increased future earnings," a percentage reduction upon the emancipation of each child, gainful employment by Mrs. Hamel, and the refusal of the taxing authorities to allow the deduction of Mr. Hamel's support payments. Article III further provided for the termination of spousal support if Mrs. Hamel remarried or had gross earnings in excess of a formula amount.⁵ The consent order of 1976 did not change these provisions. Thereafter, when the trial judge ordered a change in custody of the two children from Mrs. Hamel to Mr. Hamel in 1982, Mr. Hamel's monthly support payments to Mrs. Hamel were reduced to approximately $1,440. In further accordance with the separation order, as a result of increases in the consumer price index, the level of support payments to Mrs. Hamel increased to $1,957.87 in July 1984 and to $2,030.21 one year later.

The instant case, thus, is not entirely analogous to either Hamilton or Cooper. Mrs. Hamel's support payments are not set pursuant to an original order of the court after hearing and fact-finding, see, e.g., Tennyson v. Tennyson, 381 A.2d 264 (D.C. 1977), but pursuant to a separation agreement incorporated and merged without modification into the consent order which includes a judgment of divorce. The separation agreement was a comprehensive settlement of the parties' rights and a...