In Re Marriage of Biderman

California Court of Appeal Apr 9, 1992 No. B057555Published

Before: Yegan

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Holding. The court held that the trial court abused its discretion by extending spousal support because the respondent failed to demonstrate a material change of circumstances, rendering the modification an impermissible collateral attack on the final judgment.

Issues

Whether the trial court abused its discretion by modifying a spousal support termination date without a showing of a material change of circumstances.
Whether a supported spouse's failure to improve their mental health constitutes a 'failed expectation' justifying a modification of a prior support order.

Disposition. reversed

Quotations verified verbatim against the opinion

“A motion for modification of spousal support may only be granted if there has been a material change of circumstances since the last order.”

“Absent a change of circumstances, a motion for modification is nothing more than an impermissible collateral attack on a prior final order.”

5 Cal.App.4th 409 (1992) 6 Cal. Rptr.2d 791 In re the Marriage of SHARON M. and LAWRENCE J. BIDERMAN.

SHARON M. BIDERMAN, Appellant,

LAWRENCE J. BIDERMAN, Respondent.

Docket No. B057555. Court of Appeals of California, Second District, Division Six.

April 9, 1992. [411] COUNSEL

Taylor, McCord, Johnson, Conroy & Praver and David L. Praver for Appellant.

Loomis & Barrabee and Jan Loomis for Respondent.

OPINION

YEGAN, J.

Sharon M. Biderman appeals from the order extending permanent spousal support beyond the termination date specified in the final judgment. She was ordered to pay $650 per month for an additional six months to Lawrence J. Biderman, her former husband, with a review date of July 24, 1991. At the July 24, 1991 hearing, appellant was ordered to continue making $650 per month support payments until we decide the instant appeal. Appellant meritoriously contends the trial court abused its discretion as a matter of law by modifying the support termination date because respondent failed to show a material change of circumstances.

After a 20-year marriage the parties separated in 1984. Appellant filed her petition for dissolution in 1985. The issue of marriage status was bifurcated and dissolution was granted in 1986. In January of 1990, following a contested trial before retired Judge Jerry Pacht, judge pro tempore, judgment was entered on reserved property and support issues. Each party was awarded approximately $350,000 worth of assets, real property and cash. Appellant was ordered to pay respondent support in the sum of $650 per month for 12 months at which time it would "reduce to zero." Prior to trial, respondent had not requested pendente lite support and no order thereon was made during the five-year period.

The court retained jurisdiction to award spousal support to respondent but expressly determined that "... based on the value and nature of the award of property to him as set forth above, there will be no need for an award of spousal support after the 12-month period. The court further finds that the award of assets to respondent, if prudently managed, should generate sufficient income to competently care for the respondent during his lifetime." Respondent did not appeal from the judgment. As we shall explain, what he is really attempting to do is to collaterally attack the 1990 final judgment.

In Re Marriage of Biderman

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OPINION

YEGAN, J.

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