My response:
You must read this carefully.
As you read, keep in mind that there is a difference between "termination of support" and "termination of the court's jurisdiction" - - don't get them confused.
This is why I had you go through the work of typing out your Spousal Support agreement. I think you'll agree it was worth your effort.
Based upon what you wrote, I believe, and I would fight for, the proposition that your termination agreement for spousal support is defective under the California "Richmond" rule, infra. Also, I would argue against, and probably win, a termination order of the support because of your progressive disease and that such disease is keeping you from becoming self-supportive.
The court's authority to modify spousal support agreements is governed by Ca Fam §§ 3590-3593. Spousal support orders based on the parties' agreement or stipulation are deemed "law-imposed" and made under the court's authority to award spousal support; they are thus enforceable and modifiable/terminable in the same manner as any court order for spousal support except to the extent the parties have specifically agreed in writing or orally in open court that spousal support is not subject to modification or termination. [Ca Fam §§ 3590, 3651(d)]
Sometimes the wording of a contingent fixed termination date spousal support order can have a significant impact on the duration of the court's spousal support jurisdiction. Where the court simply reserves jurisdiction to act on spousal support until a specified date, jurisdiction to modify or otherwise award spousal support terminates unless the motion is filed, heard and ruled on before the fixed termination date passes. [Marriage of Carter (1994) 26 Cal.App.4th 1024, 1030, 33 Cal.Rptr.2d 1, 4-5--reservation of jurisdiction until July 31, 1992 precluded modification where motion filed in June 1992 but not heard until Sept. 29, 1992]
On the other hand, a properly-worded "Richmond order" will avoid this problem: i.e., the order should state that "jurisdiction of the court over the issue of spousal support ends on a stated date, unless a motion for modification is filed prior to that date." [See Marriage of Carter, supra, 26 Cal.App.4th at 1030, 33 Cal.Rptr.2d at 5 --"that language would protect against a failure to serve or have a hearing and decision prior to the jurisdictional cutoff . . ."; and see cases construing ambiguous provisions where no explicit language terminating court jurisdiction to extend duration)]
The effect of a "Richmond order" is to alert each spouse that the supported spouse has a specified period of time to become self-supporting, after which the spousal support obligation will cease. If things do not work out as contemplated (e.g., spouse fails to complete anticipated education or training, or is unable to find adequate employment), the supported spouse may, prior to the fixed termination date and upon a showing of good cause, file a motion to modify the original order as to amount and/or duration. The order thus places the burden of extending support "upon the one who is most able to exercise the control necessary to meet the expectations the trial judge had in making the order." [Marriage of Prietsch & Calhoun, supra, 190 Cal.App.3d at 666, 235 Cal.Rptr. at 597; Marriage of Berland, supra]
At least one California court is of the view that "Richmond orders" are the "most appropriate form" of spousal support awards in all cases except: (i) where spousal support either is not ordered or is ordered for a fixed term of short duration; (ii) in the "most lengthy marriages" where circumstances truly justify "permanent" spousal support; or (iii) where the supported spouse does not possess the capacity to become self-sufficient (e.g., health or age complications). [Marriage of Prietsch & Calhoun, supra, 190 Cal.App.3d at 666, 235 Cal.Rptr. at 597; also see Marriage of Stallworth (1987) 192 Cal.App.3d 742, 755, 237 Cal.Rptr. 829, 838 (citing with approval policy preference expressed in Prietsch & Calhoun)]
By the same token, the trial court's refusal to grant an obligor spouse's request for a "Richmond order" under circumstances warranting a reservation of jurisdiction is not an abuse of discretion. [Marriage of Stallworth, supra, 192 Cal.App.3d at 755, 237 Cal.Rptr. at 838]
If the intent is to expect the supported spouse to be self-sufficient as of a specified date and thereby shift the burden to him or her to show cause for a support extension, the supported spouse must have been made aware of that expectation--i.e., the attendant consequences of a "Richmond order" (step-downs to termination) will not be "sprung upon" the support payee. [Marriage of Gavron (1988) 203 Cal.App.3d 705, 711-712, 250 Cal.Rptr. 148, 152-153; Marriage of Heistermann (1991) 234 Cal.App.3d 1195, 1204, 286 Cal.Rptr. 127, 134]
A supported spouse cannot be penalized for a failure to meet the court's unrevealed expectation that he or she become self-sufficient: Absent the requisite advance awareness, it is an abuse of discretion to abruptly reduce or terminate support because of the failure to make good faith efforts toward self-support. [Marriage of Gavron, supra--reversible error to reduce W's support to zero after 25-year marriage where order issued 7 years earlier gave no indication of self-support expectation; Marriage of Heistermann, supra--reversible error to terminate disabled W's support where original open-ended order contained no provision "directing (W) into the work force" and no change of circumstances]
A formal warning concerning the consequences of a "Richmond order" is not necessarily required. The prerequisite "awareness" of the judicial expectation of future self-sufficiency may come from, e.g., an explicit statement in the support order, a motion and ensuing order that the supported party submit to a vocational training examination, a stipulation addressing the spouse's ability to obtain future employment, or even a justified assumption of continued future employment based on the spouse's employment at the time the order setting a reasonable termination date was made. [Marriage of Gavron, supra, 203 Cal.App.3d at 712, 250 Cal.Rptr. at 153]
This rule came about to accommodate the reality that in many marriages of long duration the former statute would have unreasonably put the burden on supported spouses to become self-sufficient just as they enter their "senior, non-income producing years." The amendment is intended to restore the full integrity of the "Morrison rule" to the effect that trial courts not blindly terminate support jurisdiction in lengthy marriage cases. [See Assembly Comm. Rept., AB 391, 1999-00 Reg.Sess.]
The amended statute does not appear, however, to undo the Gavron holding that the supported spouse must have been made aware (either expressly or inferentially) of self-support expectations if the court is to terminate or reduce support on that basis as of a specified future date.
When a spousal support order or agreement uses clear and unequivocal language terminating spousal support on a specified date or upon the occurrence (or nonoccurrence) of a specified event, there is no basis upon which the court may imply a reservation of jurisdiction. Unambiguous, unconditional termination language precludes the court from ordering support past the specified date or terminating event. [Marriage of Iberti (1997) 55 Cal.App.4th 1434, 1448, 64 Cal.Rptr.2d 766, 769 (citing text); see Marriage of Beck (1997) 57 Cal.App.4th 341, 346-347, 67 Cal.Rptr.2d 79, 82-83 (7-year fixed termination order with no language implying court intended to retain power to modify thereafter)--once terminated, jurisdiction cannot be reinstated on basis of parties' disparate economic circumstances; Marriage of Zlatnik (1988) 197 Cal.App.3d 1284, 1290-1291, 243 Cal.Rptr. 454, 458--error to extend support in light of provision stating "in no event shall H be obligated to pay spousal support to W after (specified date)"]
With regard to the above, this is exactly what you DON'T have in your agreement, and one of the reasons why your Support order is defective.
Similarly, there is no room to imply a reservation of jurisdiction beyond a fixed termination date where the order or judgment unambiguously states the court reserves jurisdiction to award spousal support until a specified date. Pursuant to such language, any spousal support modification motion must be filed, heard and decided prior to expiration of the specified date. [Marriage of Carter (1994) 26 Cal.App.4th 1024, 1030, 33 Cal.Rptr.2d 1, 5]
Notwithstanding a termination of spousal support jurisdiction, there is authority recognizing a court's inherent equitable power to order a reinstatement of terminated spousal support "to do justice when an unforeseen change in the law destroys the effect" of the court's prior order. [Marriage of Olsen (1994) 24 Cal.App.4th 1702, 1704, 30 Cal.Rptr.2d 306, 307]
Indeed, the policy of the law is that spousal support orders be made in a manner that encourages the supported party to become self-supporting within a "reasonable period of time"; and the failure to make good faith efforts toward self-support may be a factor considered by the court as a basis for modifying or terminating support. [Ca Fam §§ 4320(k) ("reasonable period of time" to become self-supporting generally is deemed to be one-half the length of the marriage), 4330(b); Marriage of Schaffer (1999) 69 Cal.App.4th 801, 810, 81 Cal.Rptr.2d 797, 803]
With regard to the above, this is where your disease comes into play. It would be my argument that your disease is keeping you from being self-supportive.
Thus, where the supported party is capable of self-support in accordance with the marital standard of living, an indefinite-term order will rarely be appropriate. [See Marriage of Schaffer, supra, 69 Cal.App.4th at 803-804, 81 Cal.Rptr.2d at 798-799 (affirming step-down to zero with reservation of jurisdiction where, despite 6 prior postjudgment support extensions, W failed to make realistic self-support efforts over 15-year period); see also Marriage of Hebbring (1989) 207 Cal.App.3d 1260, 1266-1267, 255 Cal.Rptr. 488, 491--may be abuse of discretion to retain spousal support jurisdiction after "short" marriage]
A spousal support order may not be modified or terminated to the extent the parties' written agreement or, if no written agreement, their oral agreement entered into in open court, expressly provides spousal support is not subject to modification or termination. [Ca Fam § 3651(d); Marriage of Sherman (1984) 162 Cal.App.3d 1132, 1138-1140, 208 Cal.Rptr. 832, 835-836--no modification where underlying agreement merged in judgment contained nonmodifiability provision; see Marriage of Rabkin (1986) 179 Cal.App.3d 1071, 1081, 225 Cal.Rptr. 219, 224-225--order fixing support with expectation of sale of family home and providing sale shall not be considered "change of circumstances" precludes support modification on basis of sale]
Withregard to the above, there is no language in your Order concerning jurisdiction or modification; therefore, the court can modify your agreement. Since your orders DO NOT specify whether or not the court's jurisdiction continues, despite the termination date, jurisdiction then is "implied" to continue !! A specified termination date does not divest the court of jurisdiction to extend support past the termination date if the order did not otherwise explicitly preclude judicial modification (Ca Fam §§ 3591(c), 3651(d), i.e., a properly-worded "Richmond order" stating the court's spousal support jurisdiction terminates on a specified date unless a motion for modification is filed before that date, protects against the failure to serve the motion or have a hearing and decision before the termination date: The court has jurisdiction to extend the duration of support so long as the motion is filed before the termination date. [Marriage of Carter, supra, 26 Cal.App.4th at 1030, 33 Cal.Rptr.2d at 5]
An order terminating spousal support jurisdiction on a specified date unless, prior to the fixed termination date, the supported spouse files a motion showing good cause to modify the amount and/or duration is proper even upon the dissolution of a "lengthy" marriage. If it can reasonably be inferred from the evidence that the supported spouse is capable of self-support, such an award is deemed justified in that, unlike an open-ended order, it does not encourage delay in seeking suitable employment and, thus, accommodates the policy goal (expressed in Morrison and Ca Fam §§ 4320(k), 4330(b)) that both spouses be able to get on with their lives, free from obligations to each other. [Marriage of Richmond (1980) 105 Cal.App.3d 352, 356, 164 Cal.Rptr. 381, 383-386]
But, by the time your Spousal Support is scheduled to end, your disease may be progressed to the point where there is no hope for self-support, and extending the Spousal Support is the only answer.
Do not make your Motion for an extension of the Spousal Support until one year prior to the stated "expiration date" of 2005. By that time, also, check with an attorney whether the laws have changed - - however, at this point, I sincerely believe you would have a very, very good chance at having your Support extended because:
1. The agreement is, I believe, defective; i.e., jurisdiction continues past the scheduled termination date and,
2. Your disease will keep you from being self-supportive.
Good luck to you.
IAAL
[Edited by I AM ALWAYS LIABLE on 12-11-2000 at 09:52 PM]
