Biderman v. Biderman

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.

[412]In his petition for modification and extension of spousal support filed in January of 1991, respondent claimed (1) he had been unable to live on the support awarded, (2) the $43,000 cash he received at the bifurcated property trial had been used to pay off debts, (3) he was still unable to work due to the depression, and (4) he had been so disabled since separation in 1984.

Respondent’s financial declaration indicated he still owned all three pieces of real property awarded him in the dissolution, two of which were still being rented for an annual net amount of $3,176. Respondent lives in the third residence. His last salary as an engineer was $3,445 per month in 1984.