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In re Medlyn2/4/2004
n an income has changed as a result. Nor, more importantly, does it establish a substantial change in her ability. The majority finds a substantial change in the difference between the "little or no income" that wife said she could earn in 1993 and the "no income" that she says she can earn now. That is a difference of, at best, semantics, not substance, and even the semantic difference has no real support on this record. The majority all but reads "substantial" out of the test for modifying a spousal support award.
Equally troubling is the majority's conclusion that any change in wife's circumstances is unanticipated. By wife's own admission, the car accident in 1978 resulted in a degenerative back condition from which she has suffered since. Degenerative disease, by definition, progressively worsens over time. Notably, wife presented no medical testimony that her degenerative condition has deteriorated in an unanticipated way. Nor did she testify to that effect. On that point, the record is wholly devoid of evidence.
In granting the modification, although the trial court made the requisite findings, it appears to have been motivated as much or more by its after-the-fact regret that it modified the spousal support when husband became unemployed in 1994: "In retrospect, after listening to the testimony in this case, the Court believes that the Court reduced the spousal support more than it should have been at the time." The trial court's concern is hard to fault, and the majority may share it. But a modification may not serve as a mechanism to relitigate an earlier spousal support award. Thomas and Thomas, 181 Or App 128, 134, 45 P3d 954 (2002). Given the lack of evidence of a substantial and unanticipated change in wife's circumstances, wife's petition for modification should have been denied.
For those reasons, I dissent.
Deits, C. J., Landau and Haselton, JJ., join in this dissent.
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