In a decision issued October 18, 2005 the Supreme Court, in the case of Arvenitis and Arvenitis , clarified the circumstances under which an alimony award may be modified.

In Arvenitis , the parties were divorced in 1992. The wife was fifty one years old and the husband was fifty years old. The husband was working full time. The husband agreed to pay the wife alimony in the amount of $500 per week.

In April of 2004, the husband sought to terminate his obligation to pay alimony. The husband argued that he was turning 63 years old and planning to voluntarily retire. The trial court denied his petition indicating that he failed to show a substantial change in circumstance had arisen since the 1992 decree which makes that 1992 decree improper or unfair. In particular, the trial court held the husband "could not claim that he was unaware at the time of the stipulation that he would retire".

The Supreme Court reversed, holding that a divorce decree must be interpreted in the light of the facts and circumstances known to the parties and the court at the time the decree was issued, along with any future events that were known or reasonably anticipated by the parties. A change in circumstance will not support a modification of the underlying decree if that change was both actually anticipated and foreseeable at the time the underlying decree was entered.

In Arvenitis , the Supreme Court held that while the trial court correctly found that it was foreseeable that the husband would someday retire from his job, the trial court failed to make any finding that the voluntary retirement was actually anticipated when the underlying decree was entered.

In short, if a party seeks to block a request for a post-decree modification of an alimony award, they must demonstrate that the change of circumstance was not only foreseeable when the underlying order was entered but that the change was actually anticipated. If the subsequent event was only a mere possibility, then the trial court may find that it was not anticipated, and therefore a substantial change of circumstances may have occurred.

Andrew J. Piela is an associate attorney at Hamblett & Kerrigan, P.A. His legal practice includes civil litigation, family law, land use litigation and probate. You can reach Attorney Piela by e-mail at: apiela@hamker.com

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