Levitt

Plaintiff Irmgard Dawson Levitt appeals from that portion of an order which reduces from $500 per month to a token amount the allowance for her support by defendant husband Gene Levitt awarded by a previous decree of divorce. Since we conclude that the provisions for support of plaintiff Irmgard were severable from an agreement signed by the parties respecting the division of property and other marital rights, and since the parties may not by stipulation deprive the court of jurisdiction to modify alimony payments provided for by judicial decree, we affirm the trial court’s order.

Irmgard and Gene were married in June 1949 and separated in July 1954, One child, Christopher, was born to the parties during their marriage. James Francis Levitt, Irmgard’s child by a prior marriage, also resided with them.

A complaint for divorce was filed by Irmgard in December 1954. The following month Irmgard and Gene signed a property settlement agreement, which at one point recited that “The parties desire to settle their respective property rights and interests as of the date of this agreement and to arrange by agreement for the making of periodical payments by Husband to Wife in discharge of…

I dissent.

I agree that the alimony provision is severable from the property settlement agreement and, therefore, subject to modification, and I also agree that the parties by stipulation could not deprive the trial court of its jurisdiction to modify the alimony provisions. But, nevertheless, it is my view that the trial court abused its discretion in making the challenged modification.

The power to modify is dependent, of course, upon a showing of change of circumstances. In other words, without a real change in the circumstances as to one or both of the parties the court is without jurisdiction to modify (see discussion and cases cited 16 Cal.Jur.2d § 215, p. 505).

Here, as the majority opinion shows on its face, the condition of the wife, so far as her need for support is concerned, has not become less than it was in 1956 when she was awarded the $500 monthly. The husband averred that in 1962, when the challenged modification was made, his former wife was “able-bodied and capable of being self-supporting.” So she was in 1956. There is no showing of a change of circumstance here. At the time of hearing in 1962 the former wife was unemployed, but in 1952 she was employed as a…