Marriage of Aylesworth, In re

• Decision Date: 11 June 1980
• Citation: 106 Cal.App.3d 869,165 Cal.Rptr. 389
• Court: California Court of Appeals Court of Appeals
• Parties: In re the MARRIAGE of Nancy Lee and John AYLESWORTH. Nancy Lee AYLESWORTH, Petitioner, Respondent and Cross-Appellant, v. John Banzley AYLESWORTH, Respondent, Appellant and Cross-Respondent. Civ. 55357.

Page 389

165 Cal.Rptr. 389

106 Cal.App.3d 869

In re the MARRIAGE of Nancy Lee and John AYLESWORTH.

Nancy Lee AYLESWORTH, Petitioner, Respondent and Cross-Appellant, v. John Banzley AYLESWORTH, Respondent, Appellant and Cross-Respondent.

Civ. 55357.

Court of Appeal, Second District, Division 5, California.

June 11, 1980.

As Modified July 9, 1980.

Malcolm Levinthal, Los Angeles, for petitioner, respondent and cross-appellant Nancy Lee Aylesworth

Arthur J. Cowley, A Professional Corp., and Howard E. Blumenthal, Los Angeles, for respondent, appellant and cross-respondent John Banzley Aylesworth.

STEPHENS, Associate Justice.

This is an appeal from a modification of an interlocutory judgment of dissolution of marriage originally entered in 1971. Petitioner, respondent and cross-appellant Nancy Lee Aylesworth (hereinafter Nancy) filed an order to show cause seeking inter alia modification of child and spousal support on December 20, 1976, and thereafter filed an amended order to show cause on April 7, 1977.

The trial court granted petitioner's request, in part, and modified the interlocutory judgment of dissolution as follows: (1) The amount of child support was increased from $325 per month per child (for four children, totalling $1300 monthly) to the sum of $900 per month per child (totalling $3600 monthly); (2) Nancy's former husband, John Banzley Aylesworth (hereinafter John), was ordered to pay private school tuition of $2,400 per year for one of the children.

While awarding petitioner attorney's fees of $7,500, the court refused her request to modify the spousal support agreement.

FACTS

The trial court found that John had a net worth of more than $1,000,000 with a net monthly income after taxes of approximately $22,500 per month. John stipulated that he had the ability to pay any reasonable increase in child support payment.

The court further found that since the time of the prior order Nancy's "fortunes (had) declined drastically (and that) she is presently in a deficit financial position . . . (while) the needs of the children . . . (had) increased due to their growth, aging and the increased costs of living due to The oldest child, John (hereinafter Duke), is presently under constant medication for epilepsy, and the court found it in his best interests to stay enrolled in a small private school where he received personalized attention. John was ordered to pay the yearly tuition of $2,400.

inflationary pressures." At the same time, John's fortunes were found to have dramatically improved and that $900 per month per child was the reasonable expense for the care and housing of the children and afforded them amenities "commensurate with their position as children of a wealthy father . . . ."

Nancy's request to modify the original spousal support agreement was denied on the basis of prefatory language found within the marital settlement agreement stating that with the exception of child support the agreement was intended to be "final, binding and non-modifiable."

Nancy's request at trial for attorney's fees was in the amount of $21,500 and was based primarily upon this being one of the largest child support orders ever obtained in California. As mentioned above, appellant was ordered to pay Nancy's attorney $7,500.

ISSUES

The issues on appeal, including Nancy's issues on cross-appeal are: (1) was the original order for spousal support modifiable; (2) did the court abuse its discretion in determining the amount of child support awarded to Nancy, (3) did the court abuse its discretion in ordering John to pay Duke's private school tuition, and (4) was the court's order regarding attorney's fees inadequate as a matter of law?

I. Is the original spousal support order nonmodifiable as a matter of law?

In its finding that the original spousal support order was nonmodifiable, with the exception of the child support provision, the trial court relied upon the following prefatory language found in a "Marital Settlement Agreement" (hereinafter MSA) executed by the parties on March 19, 1971 (page 2) "With the exception of provisions relating to child custody and child support, this Agreement is intended to be a final, binding, and non-modifiable agreement between said parties."

Cross-appellant contends that the trial court erred in relying upon this language because it was not specifically included within the interlocutory judgment of dissolution (hereinafter Order) dated May 7, 1971. ¹ We find no merit in this contention.

The language of the Order, after awarding custody of the children to petitioner, begins with the wording: "Pursuant to the Marital Settlement Agreement dated March 19, 1971 it is ordered:" and then incorporates a large portion of the MSA verbatim. Among those portions of the MSA not explicitly used in the Order are the first two pages of that agreement in which is found the above quoted language relied upon by the court in its finding of nonmodifiability. The Order begins quoting from the MSA on the page immediately following the provision cited by the court.

Finally, the last paragraph of the Order states: "It is further ordered that: (P) The written Marital Agreement executed by the parties hereto, dated March 19, 1971, and received in evidence as petitioner's Exhibit '1' (in the original dissolution), is hereby approved, and the parties are specifically ordered to perform the executory provisions thereof." (Italics added.)

It is well-established that spousal support is modifiable unless and to the extent that the parties make it otherwise. Civil Code section 4811, subdivision (b), provides in pertinent part: " . . . (t)he provisions of any agreement or order for the support of either party shall be subject to subsequent modification or revocation . . . except to the extent that any written agreement, or if there is no written agreement any oral agreement entered into in open court between the parties, specifically provides to the contrary."

We find that the nonmodifiable clause found in the first two parts of the MSA fulfills the exception requirement of section 4811, subdivision (b), and was properly relied upon by the trial court in that even though it was not included in the quoted portions of the MSA found in the original Order, it was nevertheless part of that Order. The MSA must be considered to have been incorporated into the Order in its entirety.

In Tilghman v. Superior Court (1974) 40 Cal.App.3d 599, 115 Cal.Rptr. 195, a major portion of a spousal support provision of an integrated marital agreement was cited verbatim in the court's order, except that it eliminated the last sentence of the quoted paragraph, which provided that spousal support payments were nonmodifiable and would continue after wife's remarriage. (Id. at p. 603, 115 Cal.Rptr. 195.) In that case we concluded that after the trial court had "approved" the agreement, it did not have the power to incorporate into its decree most of the paragraph in question, but omit the provision that spousal support could not be modified. (Id. at p. 613, 115 Cal.Rptr. 195.) Noting that there is strong justification for nonmodifiable provisions, we again hold that a trial court, after approving a marital settlement agreement containing a nonmodifiable provision cannot, by partial severance, make the payments modifiable without permission of the parties.

II. Did the trial court abuse its discretion in determining the amount of child support?

Nancy requested an increase in child support from $325 per month per child to $1,250 per month per child. Among other reasons, she claimed the following as changed circumstances: (1) the children's needs had increased because they were now five years older than at the time of the original order, (2) she used a substantial portion of the $115,000 she received as her share of community property to augment the living expenses of the family and has no significant present independent income, (3) the need for long term support to develop a career as a clinical psychologist and (4) John's increased ability to pay.

Respondent contends that the court's finding as to the need for increased child support is supported by substantial evidence, including Nancy's financial declaration (specifically segregating her expenses from those of the children), her amended financial declaration, and testimonial evidence from both Nancy and Mr. Dolan, a certified public accountant, who prepared a financial statement for her by using her cancelled checks and the notations thereon.

Appellant, John, contends that the court's finding was an abuse of discretion in that (A) Nancy "did not carry the burden of proof" on the issue of "(t)he legitimate needs of the children." This argument is based, in part, on the fact that Nancy's monthly expense lists show many categories of expenses wherein there can be made "no clear unequivocal distinction" between the needs of Nancy and those of the children. (B) The expense list prepared by Nancy's certified public accountant is "totally lacking in credibility" because "all his office did was recapitulate the checks in the categories as designated by Nancy (with) no independent verification." (C) The court's finding that the fact that Nancy also enjoyed a benefit from the $115,000 she used to augment the monthly child support payments was irrelevant to the issue at hand "in that it is impossible to separate the petitioner and the children in this context" was an admission that the court found it impossible to allocate the expenses between petitioner and children, and in "knowingly award(ing) an excessive amount as child support with the full realization that some of Nancy's expenses were 'buried' in that list" it committed reversible error. (See In re Marriage of Ames (1976) 59 Cal.App.3d 234, 130 Cal.Rptr. 435.) (D) Finally, through the use of conflicting testimony and financial statements filed by petitioner, appellant contends that "Nancy deliberately depleted (the...