SONENSHINE, J., Dissenting. My colleagues conclude the trial judge correctly examined Ida’s conduct over the 15 years since the dissolution [813]judgment. They are wrong and, in any event, they mischaracterize the evidence. Moreover, they misconstrue the change of circumstances requirement as applied to a postjudgment proceeding such as we consider.
The Record
The majority, following the trial judge’s lead, paint a picture of a 63-year-old woman who has spent the last 15 years refusing to become self-supporting despite constant judicial warnings. They point to her repeated visits to the courthouse, concluding “enough is enough.”
A review of the record paints a different picture. Ida had already obtained her bachelor’s and master’s degrees in counseling at the time of the dissolution. As we noted in our previous published opinion, the 1980 judgment was premised on a finding “wife suffered from emotional maladies which precluded her from [then] working as a counselor . . . .” (In re Marriage of Schaffer (1984) 158 Cal.App.3d 930, 933 [205 Cal.Rptr. 88].) However, the judgment was also “based on its presumption that she could be self-supporting as a marriage, family and child counselor.” (Id. at p. 935.)
Ida was still unable to totally support herself in 1982. The trial court in fact found this expectation unrealized. The judge noted, “[H]er mental condition may not be permanent[.] . . . [He] allowed . . . her [time] to recover and become self-supporting.” (In re Marriage of Schaffer, supra, 158 Cal.App.3d at p. 935.)
Ida returned to court in 1985. The court continued the support order. Her declaration indicated she had been unable to earn any income during the last year due to her deteriorating physical and mental health. Specifically, she delineated brain tumor surgery, carpal tunnel syndrome, kidney stones, and ongoing counseling for severe emotional problems.
A year later, Ida and Benson filed orders to show cause. She asked for more support; he requested its termination. They stipulated to monthly support of $750, continuing until January 1987.
The parties returned to court six times thereafter in 1987, 1990, 1991, 1993, 1994 and 1995. The 1987 and 1991 hearings were contested. The other four orders were based on the parties’ stipulations. All of Ida’s declarations were the same. She was trying, but the underlying presumptions, made at the time the court ended their 24-year marriage, failed to come true.
At the 1991 hearing, the court found Ida made a “good faith effort to find employment considering her disabilities.” The record bears this out. Ida was [814]self-employed as a counselor from 1985 to 1987. The part-time job she started in 1988 became a full-time position in 1991. She quit in 1993 due to stress, but shortly thereafter accepted another position. In 1994, she was fired after her supervisor decided she inappropriately pursued a personal complaint against another employee.
This Hearing and the Court’s Statement of Decision
Ida filed the underlying order to show cause seeking a continuation of the support order. This time, Benson refused to stipulate and instead the matter proceeded to hearing. The court denied Ida’s request but maintained jurisdiction over the support.
The trial court issued a detailed statement of decision, starting with matters which took place during the marriage and ending with the present situation.1 The court noted Benson’s ability to pay support and Ida’s need, but found it “unfair to require” him to do so because “for many years [Ida failed] to diligently pursue employment.”
Trial Court Standard
Ida concedes it was her burden to establish a basis upon which the court could order the support to continue. She argues she did, but the court erred in looking to their entire marital history as opposed to circumstances from the last order.2 She is right.
“A judgment for spousal support is conclusive as to the circumstances existing when it was entered. All matters that were at issue in the [past] proceedings and that were disposed of by the [order] are res judicata. The [previous] order may be subject to direct attack ... but it is not subject to collateral attack by application for modification. [¶] If determinations have [815]been made on a motion to modify after the original order, the most recent order is conclusive as to the circumstances existing when it was made. On a new motion to modify, the determinations are to be made with respect to facts arising during the period commencing with the date of the most recent order and not with respect to the time since the original decree was entered.” (2 Kirkland et al., Cal. Family Law: Practice and Procedure (2d ed. 1998) Modification of Spousal Support, § 52.21, p. 52-9, fns. omitted; Hester v. Hester (1969) 2 Cal.App.3d 1091, 1095 [82 Cal.Rptr. 811].) To allow otherwise would sanction “ ' . . collateral attack[s] on a prior final order . . .' " (In re Marriage of Biderman (1992) 5 Cal.App.4th 409, 412-413 [6 Cal.Rptr.2d 791]; In re Marriage of Aninger (1990) 220 Cal.App.3d 230, 238 [269 Cal.Rptr. 388].)
This certainly is not a new concept. We said exactly this in our prior opinion: “The tasks of the court at a postjudgment modification hearing are to discern the change, if any, of the circumstances established at the [last hearing] and to formulate an order based upon those changes.” (In re Marriage of Schaffer, supra, 158 Cal.App.3d at p. 934, fn. omitted.)
The danger of straying from this time-honored rule is obvious, as exemplified here. Benson lost his first appeal, arguing many of the same issues he repeats now. Other judges made findings directly contradicting this trial judge’s conclusions.3 Benson is getting more than another bite at the apple— the majority allows him to bake a whole new pie!
Once decided, always decided. “[F]actual issues considered and [previously] resolved . . . are fused and form the foundational mosaic upon which [a past] . . . judgment rests; they cannot be singly or jointly analyzed anew upon a subsequent modification hearing.” (In re Marriage of Schaffer, supra, 158 Cal.App.3d at p. 934.)
Correct Standard, Different Result
“Although a trial court has broad discretion in . . . modifying an award of spousal support, it is without authority to [do so] . . . unless there has been a material change of circumstances subsequent to the last prior order.” (In re Marriage of Kuppinger (1975) 48 Cal.App.3d 628, 633 [120 Cal.Rptr. 654], italics added; see also In re Marriage of Olson (1993) 14 Cal.App.4th 1, 9 [17 Cal.Rptr.2d 480].) However, if assumptions contained in the previous order “fail to materialize on schedule, despite reasonable efforts on the part [816]of the supported spouse, the court may find a change of circumstances justifying modification of the support order.” (In re Marriage of Aninger, supra, 220 Cal.App.3d at p. 240.)
Pursuant to the last order, Benson was to continue to pay monthly support of $650 until June 1995, and Ida was to inform Benson should she become employed prior to that time. Implicit are the following assumptions: (1) Ida was still unemployed; (2) she was to continue to use her best efforts to find work; (3) her unemployment insurance failed to satisfy her needs; (4) the support payments were intended to supplement Ida’s income; and (5) because the unemployment insurance payments were to terminate in February 1995 and the court retained jurisdiction, the parties did not necessarily contemplate Benson’s support obligation would end in June.
“[This] language is unambiguous and reserves for future court decision, should the need arise, [Ida’s] entitlement to spousal support beyond [June 1995].” (In re Marriage of Beust (1994) 23 Cal.App.4th 24, 28-29 [28 Cal.Rptr.2d 201], italics added.) “To justify a continuation of support, [Ida] ha[d] the burden to show a change of circumstances since the agreement was executed in 19[95]. So long as [she] . . . ha[d] made reasonable efforts to become self-supporting,” she fulfilled that burden. (Id. at p. 29.) The only question to be answered by the trial court therefore was: Had Ida used her best efforts to find employment?
The short answer is yes. Ida “presented evidence that she ha[d] made reasonable efforts to become self-supporting, but ha[d] failed to do so as ‘expected.’ The trial judge [however, rejected this] . . . evidence . . . . This [was wrong and] defies the factual record, ffl] . . . [T]he court’s failure to give any weight to [Ida’s] evidence of continuing need is more egregious in light of [the court’s finding of Benson’s] continuing ability to pay spousal support.[4] Thus, this situation is not one where the financial needs of both parties cannot be satisfied. [Citation.] As such, the court’s denial of [Ida’s] motion for modification is an abuse of discretion.” (In re Marriage of Beust, supra, 23 Cal.App.4th at pp. 29-30, original italics.)
Ida’s order to show cause asked for $2,500 a month. She explained her unemployment insurance of $989 was due to expire on February 11, 1995. Because she was 63 years old, she was entitled to monthly Social Security benefits of $340, but preferred to wait until she was 65 when she could [817]receive $440. Although she had been looking for work, her age, and her medical and mental condition kept her from finding anything. She declared she “looked through the ads in the newspapers, mailed numerous resumes and made numerous telephone calls, all to no avail.” She attached 14 copies of letters she received in response to her attempts to find employment. She also submitted unemployment insurance forms from September 19, 1994, through February 10, 1995, evidencing she had contacted several hundred potential employers.
Even the trial court acknowledged: (1) Ida “has had and continues to have emotional problems”; (2) Ida had no income at the time of the hearing; (3) she was eligible to receive monthly Social Security benefits of $330; (4) Ida deferred receipt of those benefits, wishing to receive a larger amount at age 65; (5) Ida had approximately $19,000 in savings; (6) Benson’s financial situation is superior to Ida’s; and (7) he has the ability to pay spousal support.
“[T]he trial court’s order constitutes an abuse of its discretion . . . .” (In re Marriage of Beust, supra, 23 Cal.App.4th at p. 31.) I would remand the matter to the superior court for a rehearing on the amount and duration of spousal support.
The court referenced the parties’ 24-year marriage, their 1976 separation and Benson’s prejudgment voluntary support of Ida “in an amount that was in excess of the amount that would have been ordered by the court. . . .” The court noted during the marriage Ida worked as a receptionist and office assistant. It also commented she had attended college part-time before separation but became a full-time student thereafter. The judge explained Ida testified at the 1980 trial she had obtained bachelor’s and master’s degrees and hoped to pursue a Ph.D. in marriage, family, and child counseling. Despite the trial court’s admonition that Ida lacked the necessary temperament and emotional stability, she continued her studies.
It matters not that the last prior order resulted from the parties’ stipulation. As we recently explained, the rule applies to litigated orders and those resulting from a stipulation. (In re Marriage of McCann (1996) 41 Cal.App.4th 978, 984 [48 Cal.Rptr.2d 864].) “The court, by including the stipulation in its own decree, presume [d] that the parties arrived at a fair support award, after arm’s-length negotiations, that took [these factors] into consideration . . . .” (In re Marriage of Hentz (1976) 57 Cal.App.3d 899, 901-902 [129 Cal.Rptr. 678].)
The trial court found, for example, “for at least ten (10) years, [Ida] made no effort to become financially independent by obtaining appropriate employment.” This contradicts the 1991 finding of her “good faith effort[s] to find employment considering her disabilities.”
As previously discussed, the court instead looked to the following: trial court findings from the original judgment; Ida’s pre- and postseparation education; her efforts to find, and her actual, employment from the time of separation; the duration and level of postseparation but prejudgment support and the number of postjudgment modifications.