11 J. Contemp. Legal Issues 325 (2000-2001)
In re Marriage of Reynolds

handle is hein.journals/contli11 and id is 339 raw text is: In re Marriage of Reynolds

AMBER SPATARO
Family Law, November 1999
What standards may a California court use to determine a an ex-
spouse's ability to pay spousal support in modification proceedings? How
may the court react when the post-divorce supporting spouse chooses to
reduce or eliminate his ability to pay? Does it matter that the supporting
spouse has chosen to retire rather than, say, quitting work and returning to
school full-time? Does the supporting spouse's age reflect on the legiti-
macy of his choice to retire? In re Marriage of Reynolds is a recent
attempt to answer these questions.'
Gordon Reynolds was 63 years old in 1989 when he and Polly
Reynolds divorced after a marriage of 40 years. Based on his income of
$17,000 per month, Gordon agreed to pay $5500 monthly spousal support
to Polly; this obligation was expressly made modifiable after October
1991. In August 1992 Gordon, having broken his leg and lost his
$140,000-a-year job, moved to terminate his support obligation. Polly
opposed, contending that Gordon had plenty of earning capacity and
investment income, while her need for support remained substantial. By
the time the trial court heard the modification motion in 1994, Gordon was
nearing 68 years of age, had remarried, and had retired. In early 1995 the
trial court modified Gordon's support obligation from $5500 to $3500 per
month, finding that he had a monthly income of $5000 based on his
investment income and his ability to work, even though he had earned
nothing since January 1993.
Gordon appealed, contending the trial court's finding that his monthly
income equaled $5000 was unsupported and that the order would
improperly require him to invade his retirement principal-his share of the
Reynolds' community property divided on divorce-to pay Polly. The
Court of Appeal reversed.2 The key issue on appeal was whether, if
Gordon had indeed retired, the trial court could properly attribute to him
a monthly income based on his ability to earn rather than his actual
1. In re Marriage of Reynolds, 63 Cal. App. 4th 1373 (1998).
2.  Id. at 1380.

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