Terry

I respectfully dissent from that portion of the majority’s opinion reversing the trial court and ordering termination of spousal support. I concur in the remainder of the majority opinion.

The parties separated in 1993 after more than 34 years of marriage. In August 1995, the trial court entered a permanent order of spousal support in favor of Ms. Terry in the amount of $8,750 per month after finding that Mr. *934 Terry had an annual income between $315,000 and $340,000, and that Ms. Terry had reasonable needs amounting to $120,000 to $144,000 per year, net of taxes. The trial court further found this amount of support would not allow Ms. Terry to replicate the marital standard of living without tapping into the principal of her separate property assets. At the time, Ms. Terry had a Merrill Lynch portfolio of cash and securities worth approximately $2.04 million, which was generating annual pretax income of approximately $80,000 ($8,500 of which was tax-free income)—a return of approximately 4 percent per year. In the course of the 1995 support proceedings, the trial court expressly found—based on expert testimony—that Ms. Terry was receiving a reasonable rate of return on her…

Three times the trial court has ruled on the matter of spousal support in this case. Each time the supported spouse’s estate has grown and the supporting spouse’s income has diminished. Yet, on this last go-around, with the supported spouse enjoying an investment portfolio of nearly $3.75 million, retirement benefits approaching $1 million and real estate valued at $773,500, the trial court refused to invoke its independent *925 authority under Family Code 1 section 4322 to terminate support. We reverse the order diminishing, but continuing spousal support, and concurrently affirm the subsequent order denying the supported spouse’s request for attorney fees.

I. Factual Background

Mary E. and Thomas D. Terry separated in April 1993 after a 34-year marriage. By then their three children were adults. Mr. Terry has remarried; Ms. Terry has not.

Mr. Terry has been one of the country’s leading tax experts in the area of employee benefits. He has been a partner with two Bay Area law firms, first with Morrison & Foerster and then with Pillsbury, Madison & Sutro (PM&S). In between, Mr. Terry served as a benefits tax counsel in the United States Treasury Department. In contrast,…