In Marriage of Kacik, the parties had a 16 year marriage. Wife was found to have the ability to earn some, but not a lot of, income per month. Husband had earnings of $11,000 per month. The parties had one child together. In 2001, the Judgment awarded child support and spousal support to the Wife. However, in the Judgment, the spousal support was to reduce from approximately $1,600 per month to zero by February 2008. The minor child aged out of child support in 2006 so the child support would reduce, and did reduce, to zero in August 2006. In February 2008, Wife petitioned the court to increase the spousal support as Husband’s income increased to $14,000 per month. When Wife’s request to increase the spousal support was heard by the trial court the court held that the termination of the child support was a change of circumstances that would warrant a review of the spousal support and the court continued the $1,600 per month spousal support rather than reducing it to zero. Nice result for the Wife right? Well Husband appealed the ruling, of course.
The appellate court took a look at Family Code section 4326. This section basically says that where there is a spousal support order in which the court has retained jurisdiction over spousal support and if there is a companion child support order in effect, the termination of the child support order pursuant to Family Code section 3901(a) [when a child ages out of support] such termination constitutes a change of circumstances that may be the basis for a request for modification of spousal support.
What the appellate court focused on was the “in effect” language. The court could not find any legislative intent as to what was meant by the words “in effect”. Remember that the Wife’s child support order terminated in 2006, and Wife asked for an upward modification in February 2008. The court held that 17 months after the termination of the child support order was too far removed to be considered “in effect” when she asked for an upward modification of spousal support. The court indicated that a reasonable time would be a few months and that Wife’s request was brought in the face of the pending termination of spousal support not the termination of the child support. Thus, the appellate court reversed the trial court’s decision and Wife’s spousal support was reduced to zero.
So the moral of the story here is should there be a spousal support order “in effect” when child support is to terminate, it may be worth a consult with your family law attorney to see if an increase or other change in spousal support is warranted before the order terminates.