Jacobs v. Jacobs

Opinion

KINGSLEY, Acting P. J. This is the second appeal in this case. In Marriage of Jacobs (1980) 102 Cal.App.3d 990 [162 Cal.Rptr. 649], we reviewed an order of the superior court refusing to modify a support order which had limited the wife’s support to $1 per year after a brief period. We reversed that order on the ground of the wife’s showing that that limitation had been imposed on the assumption that, by the termination date, the wife would have become self-supporting and that, since that assumption had proved to be in error, the wife was entitled to a modification to continue her support. On remand, the trial court, on October 27, 1980, granted the wife support in the amount of $200 per month, retroactive to May 1, 1980,—one day after the remittitur on the first appeal had been filed in the trial court.

On this appeal the wife, not attacking the order for future support, contends that it was an abuse of the discretion granted by section 4801 of the Civil Code not to have made the modification retroactive to the date when the modification was first denied. We agree with that contention.

I

It is agreed that, in January of 1980, the wife had become employed in a full-time job. The husband here argues that, in some fashion, the wife and her counsel had been guilty of misconduct in not calling that fact to our attention when the first appeal was submitted. That conten[835]tion is itself improper—we decide cases on the record, and facts, before the trial court. Except in rare cases where events subsequent to the ruling under review have rendered the case totally moot, we do not, and may not, consider subsequent events. No factor of mootness was involved in a review of an order long since made.

II

The husband contends that the present appeal is barred by an order made by this court after rendering the decision reported in 102 Cal.App.3d. That contention is frivolous. The wife’s counsel had written to this court, after the first opinion came down, seeking a modification to expressly direct a retroactive award. That request was denied by a summary order. That order did not pass on the issue now before us. Our mandate had directed the trial court to rehear the original motion for modification. Any retroactivity was to be decided by the trial court in the light of facts developed at the new hearing; we were entitled to, and did, assume that the trial court would rule properly on that, as well as on the other issues, before it.