In Re Marriage of Harbach

Lee Brett Harbach and Nancy Lynn Harbach married August 17, 1974, separated November 18, 1980, and their marriage was dissolved by an interlocutory decree entered August 3, 1982. The decree provided for support of the three children of the marriage, division of property and the usual terms attendant upon divorce. The decree required Lee to pay $2,000 monthly spousal support “until July 14, 1984 at which time [his] obligation to pay spousal support . . . shall cease and terminate.”

Lee and Nancy then stipulated to and the court ordered on December 29, 1982, a modification of the decree dividing and awarding community property, modifying child support and revising spousal support requirements. Paragraph 7 of the modified decree required Lee to pay Nancy $2,000 monthly spousal support “until the death of either party, [her] remarriage, or December 31, 1986, whichever first shall occur.” Paragraph 7 then recites the payment of spousal support “is premised” upon the expectation Nancy would obtain an advanced degree, set out her academic obligations to enroll for at least nine credit hours for each semester, required a report to *631 Lee about her progress and provided that…

I dissent. The majority rest their decision to affirm the order extending Lee’s obligation to pay spousal support on what they describe as the parties’ mutual mistake. They say, “In construing the modification decree, the court took into account this mutual mistake of the parties and extended the spousal support by four months to effectuate the intent of the parties. Unlike Foreman, jurisdiction was retained by the court to modify the decree in the event Nancy failed to carry out her scholastic obligations.” (Maj. opn. ante.) Although the logic of this reasoning may be compelling there is no legal or factual basis for its application. Even Nancy does not suggest the trial court’s power to modify spousal support is tied to the parties’ mutual mistake as to when she was to obtain her graduate degree. She argues the trial court’s power to modify rests on two separate theories. The first is based on Vomacka and its progeny. The second is on a *635 unique cost/benefit analysis where the error is not prejudicial because the cost to Lee of four months additional support is insignificant compared to his benefits when he no longer is obligated to pay spousal support.

This latter argument…

Lee Brett Harbach and Nancy Lynn Harbach married August 17, 1974, separated November 18, 1980, and their marriage was dissolved by an interlocutory decree entered August 3, 1982. The decree provided for support of the three children of the marriage, division of property and the usual terms attendant upon divorce. The decree required Lee to pay $2,000 monthly spousal support "until July 14, 1984 at which time [his] obligation to pay spousal support ... shall cease and terminate."

Lee and Nancy then stipulated to and the court ordered on December 29, 1982, a modification of the decree dividing and awarding community property, modifying child support and revising spousal support requirements. Paragraph 7 of the modified decree required Lee to pay Nancy $2,000 monthly spousal support "until the death of either party, [her] remarriage, or December 31, 1986, whichever first shall occur." Paragraph 7 then recites the payment of spousal support "is premised" upon the expectation Nancy would obtain an advanced degree, set out her academic obligations to enroll for at least nine credit hours for each semester, required a report to Lee about her progress and provided…