Nature of the Case
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Facts
Spousal maintenance was included in a 'Property Settlement Agreement' signed by the parties and incorporated by reference into the decree. H agreed to pay W $600.00 for forty-eight months. Under case precedent, such an award is a nonmodifiable lump sum because it does not contain specific language reserving to the court the power to modify. Under another division's case precedent, the award is modifiable, because it is not unconditional. The total amount of H's obligation is neither fixed nor certain but instead may vary upon the death of either spouse or court order. W petitioned for modification of the spousal maintenance award to extend spousal maintenance to continue until death, remarriage, or further order of the court. The court transferred the case to resolve a conflict between its lower court divisions. H and W were married in 1955. At the time of dissolution in 1983, both were 50 years old. Before marriage, W worked as a telephone operator, but after marriage, she concentrated her efforts on raising their five children. In 1973, to assist in family finances, W attempted to work in temporary positions, but was able to find employment only in unskilled positions, such as running a postage meter. Following the dissolution, W found employment as a filing clerk, a position she held at the time of the motion to modify spousal maintenance. Her gross pay was $950 per month. Because she could not afford to remain in the home she received as part of the community property division, W moved into a mobile home. Although she lived in a mobile home and spent $ 150 per month on food, she testified that her expenses exceeded her income. In 1987, W was diagnosed as having cancer and underwent a modified radical mastectomy. W testified that although her health did not prevent her from continuing work, it did require additional out-of-pocket expenditures. H earned approximately $39,000 per year as an engineer. By 1987, his salary increased to $41,000 per year. He remarried after the dissolution. At the time of the 1987 hearing, he and his current wife, who also was employed, lived in a home requiring monthly payments of over $ 900. Together they spent over $400 per month on food. The court found that W's 'ill health and her inability to sustain meaningful employment' constituted a substantial and continuing change in circumstances. It ordered the $600 per month spousal maintenance remain in effect until death, remarriage, or further court order. H appealed.
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