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 movie extra. Whether she was employed in 1956 does not appear. Certainly, under the showing made, the former wife had a greater not a lesser need in 1962 than she had 10 years previous. Her sole source of income was the alimony. She had removed her residence to Germany. That, of course, does not show less need in 1962. She had leased a house in Germany relying on the continuation of the alimony payments. This shows no less need in 1962 than in 1956. As to the former wife, therefore, it is quite clear that there was a total failure to show less need in 1962 than in 1956.

As to the claimed change of circumstances of the husband as to his ability to pay, he showed that he had remarried, had a child by his present wife, and that it was difficult to support his first wife and his present family. This is not a change of circumstances that, alone, would justify a modification. In Reed v. Reed, 128 Cal.App.2d 786 [ 276 P.2d 36 ], the husband attempted to justify a modification order on the ground he had remarried. The court properly stated (p. 792): “The fact of the husband’s remarriage is, of course, established, and that is a circumstance that may be considered, although in itself alone it would not be justification for reducing the former wife’s alimony if her needs demanded its *486 continuance at the same amount as in the past. His remarriage, as said in Long v. Long, 76 Cal.App.2d 716, 723 [ 173 P.2d 840 ], does not exempt him from providing for her support." Thus, the remarriage of the husband, alone, cannot justify the modification. It is true that the husband made a showing that his method of working had changed since 1956, but it was also shown that his income was not below what it was in 1956. There was no showing that his needs, except for the remarriage, had increased. In this connection it must be remembered that in 1956, as part of the modification then ordered, he stipulated that he would not seek further modification unless his income diminished. While that stipulation is not binding on the trial court, it is a factor to be considered in determining whether a further modification should be permitted. This is an equitable proceeding, and the fact that the husband secured one modification predicated on his promise, is certainly a factor that should be considered by a court when determining whether to grant the husband a further modification in direct violation of his promise.

The 1956 award gave the wife $250 for Christopher’s support. The 1962 award gave the husband custody of Christopher for the nine months of the school year. This did not impose a greater financial responsibility on the husband, because during those nine months he was relieved of any payment to his former wife for Christopher’s support. The $250 is apparently the amount necessary for Christopher’s support. Thus the 1962 order did not increase the financial obligations of the husband.

These are the only facts that the majority opinion sets forth as a change in the circumstances of the parties as far as the needs of the wife or the ability to pay by the husband are concerned.

While it is the law that, in modification proceedings, the trial court has great discretion, such discretion is not unlimited. To justify a modification there must be evidence of a change of circumstances in one or the other or both respects mentioned. Here there was no such showing. It follows that there was an abuse of discretion in making the modification. The order should be reversed.

Tobriner, J., concurred.

Appellant’s petition for a rehearing was denied March 17, 1965. Peters, J., and Tobriner, J., were of the opinion that the petition should be granted.