Filed 11/28/05 In re Marriage of Harper CA4/3

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California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re Marriage of KIMBERLY and LAURENCE HARPER.
KIMBERLY HARPER, Respondent, v. LAURENCE HARPER, Appellant.	G034860 (Super. Ct. No. 98D004357) O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Richard G. Vogl, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed and remanded with directions.

Law Office of Kari M. Myron and Kari M. Myron for Appellant.

Prescott & Prescott, Tonya E. Prescott and Valerie E. Prescott for Respondent.

Appellant Laurence Harper (Laurence) appeals from an order modifying his child and spousal support payments to his ex-wife, Kimberly Harper (Kimberly). We find substantial evidence supports the court's determination that the parties shared an unrealized expectation Kimberly would become self-sufficient, which constitutes a change in circumstance justifying modification. But the court abused its discretion by relying solely on Laurence's monthly expenses, instead of his ability to pay, to calculate the new support amount. We therefore reverse and remand for a proper calculation.

FACTS

Laurence and Kimberly divorced in May 1999 after 20 years of marriage. The dissolution judgment incorporated the parties' marital settlement agreement, which required Laurence to pay $2,000 per month in child support for the couple's three children, and $750 per month in spousal support. The judgment provided the spousal support payment could not be modified until April 30, 2004, and thereafter would be â€