In Re Marriage of Jacobs

Opinion

KINGSLEY, Acting P. J.

In 1977, in an action for dissolution brought by the wife, the parties entered into a long stipulation, carried into the interlocutory decree, which, insofar as is here material, reads as follows:

“The parties stipulate to the following provisions for spousal support payable from respondent to petitioner. Russell Jacobs will pay to Bettie

[992]

Jacobs the sum of five hundred dollars ($500) per month commencing on April 1, 1977 and payable through December 31, 1978, less one-half of any net wages earned by Bettie Jacobs during that period of support. Thereafter, spousal support is payable from respondent to petitioner in the sum of one dollar ($1) per year until such time as petitioner becomes eligible to receive her own maximum Social Security benefits, but in no event later than her attainment of age 65 years. Such payments are due at the rate of $250 on the first of each month and $250 on the fifteenth of each month.

“The parties further stipulated that if petitioner attends any business or secretarial school for the purpose of learning or increasing skills for her future employment, at any time through December 31, 1978, upon her enrollment in any said school Russell Jacobs will pay the sum of $600 to aid with all tuition, books, and all other school materials actually incurred as an expense by Bettie Jacobs.”

It is agreed that that stipulation was entered into in the light of the fact that the wife then, and for sometime prior thereto; had been suffering from psychiatric problems, necessitating periodic hospitalization. It is also agreed that the provision for reducing support to $1 per year after 18 months was based on the mutual anticipation of the parties that, by that time, the wife’s condition would be alleviated to the extent that she could become self-supporting. On October 20, 1978 (two months before the reduction was to take effect), the wife moved to modify the support provision so as to continue support payments. The trial court denied the motion to modify. We reverse.

The wife’s contention, supported by her own declaration and by the declaration of her psychiatrist, is that, contrary to the 1977 anticipation, her condition still was such as to prevent her either from continuing the program of education then contemplated, or to be gainfully employed. While we cannot take exception to the trial judge’s remarks, quoted to us in the briefs, that it is desirable for a person with the problems of this wife to become busy at work,