Sullivan v. Sullivan

• Decision Date: 24 December 1981
• Docket Number: No. 13020,13020
• Citation: 102 Idaho 737,639 P.2d 435
• Parties: Shirley P. SULLIVAN, Plaintiff-Respondent-Cross Appellant, v. Edward L. SULLIVAN, Defendant-Appellant-Cross Respondent.
• Court: Idaho Supreme Court

Page 435

639 P.2d 435

102 Idaho 737

Shirley P. SULLIVAN, Plaintiff-Respondent-Cross Appellant, v. Edward L. SULLIVAN, Defendant-Appellant-Cross Respondent.

No. 13020.

Supreme Court of Idaho.

Dec. 24, 1981.

Louis H. Cosho and Stanely W. Welsh, Clemons, Cosho & Humphrey, Boise, for Shirley P. Sullivan.

William J. Brauner, Caldwell, for Edward L. Sullivan.

BISTLINE, Justice.

In 1969, after twenty-two years of marriage, plaintiff-respondent Shirley Sullivan filed a complaint against defendant-appellant Edward Sullivan seeking a decree ordering that the parties live separate and apart, that she have custody of their minor children, and that Mr. Sullivan pay her a monthly sum sufficient to provide her and the children "with the necessities and amenities consistent with their station in life." Mr. Sullivan then employed counsel and counterclaimed, seeking a divorce and an equitable division of the community property.

Thereafter both parties, represented by most able counsel, entered into a written agreement which divided their community property, gave Mrs. Sullivan custody of their minor children and set child support at $150 per month per child. The Agreement also provided that Mr. Sullivan was to pay Mrs. Sullivan alimony of $800 per month, ceasing on her death or remarriage, with the alimony payments increasing proportionately to any increase in the Cost of Living Index up to a maximum of $850.00 per month. The Agreement further noted that Mr. Sullivan had paid Mrs. Sullivan's counsel attorney fees of $2,500, which Mrs. Sullivan accepted as full and complete payment for all attorneys fees in all further proceedings between them with reference to divorce, separate maintenance, or this Agreement. Finally, the Agreement provided that it would be submitted to the court for approval, but not merged as a part of the judgment.

Such being accomplished, Mrs. Sullivan amended her complaint to allege that the parties had entered into an agreement dividing the community property, providing for the support of the minor children, and providing for alimony. Mrs. Sullivan asked for judgment awarding her alimony of $800 per month, to be adjusted to reflect the increases in the Cost of Living Index, with a ceiling of $850 per month, ¹ and that the court approve and confirm the Property Settlement and Custody Agreement. Mr. Sullivan then filed a perfunctory answer and the cause was submitted to the court. At the hearing, where the property settlement agreement was the only exhibit, Mr. Sullivan rested after Mrs. Sullivan rested. The court then entered a judgment and decree in conformance with the allegations of the amended complaint, the court decreeing alimony and child support as prayed for.

Subsequently, in April 1977, Mrs. Sullivan petitioned for a modification of the divorce decree, alleging a substantial and material change in circumstance and asking for an increase in alimony to $2,500 per month. Mr. Sullivan then apparently moved the court to eliminate alimony altogether. ² The trial court, after hearing three days of testimony, found that while Mrs. Sullivan's financial net worth had increased, her standard of living had decreased because of inflation and her ineptness in handling her finances. The court then held that Mrs. Sullivan had "met her burden for an increase in alimony based solely on the effect of inflation on her allowance. She has not met her burden of proof so as to justify an increase in alimony because of any loss of her former standard of living by factors other than inflation." The court then increased alimony to $1,500 per month. ³

As to Mr. Sullivan's attempt to eliminate alimony entirely, the trial court denied this petition on the grounds that Mr. Sullivan was not genuinely interested in having the alimony reduced, that this was just a defensive position, and that he had failed to meet his requisite burden of proof. The court subsequently awarded Mrs. Sullivan $2,776.00 in attorney fees, as against a request of $8,300.00. To arrive at this figure, the court noted that Mrs. Sullivan could have established her case solely by showing her own basic needs, the cost of living increase and that Mr. Sullivan had the ability to pay; the court held that Mrs. Sullivan was responsible for her own attorney's fees for the large expenditure of counsel's time spent in undertaking to establish entitlement to an even greater increase in alimony based on Mr. Sullivan's increased prosperity-an undertaking in which she did not prevail. ⁴

There are two primary issues on this appeal, both raised by Mr. Sullivan: ⁵ (1) whether the trial court erred in finding that Mr. Sullivan had not sustained his burden to show that alimony should be eliminated entirely; and (2) whether the trial court erred in increasing alimony solely on the grounds of inflation. ⁶

As to the first issue, "the resolution of this question rests within the discretion of the trial court ...." Olsen v. Olsen, 98 Idaho 10, 11, 557 P.2d 604, 605 (1976). There is abundant evidence to support the trial court's finding, and we find no abuse of discretion. As to the second issue, however, we hold that inflation, cost-of-living increases, or devaluation of the dollar, however termed, are not sufficient, standing alone, absent any corresponding determination of the correlative needs and abilities of both parties, to modify an award of alimony. See Ducote v. Ducote, 339 So.2d 835 (La.1976); Fakouri v. Perkins, 322 So.2d 401 (La.App.1975). Accordingly, the decision of the trial court increasing alimony payments is reversed. ⁷ Correspondingly, since Mrs. Sullivan is no longer the prevailing party, the award of attorney's fees cannot stand.

The order modifying the final decree is reversed, with no costs allowed.

McFADDEN and DONALDSON, JJ., concur.

BAKES, C. J., concurs in the result.

SHEPARD, J., concurs in part and dissents in part.

BAKES, Chief Justice, concurring specially:

I concur in the result reached by the majority, but for the reasons expressed in the special concurring opinion of Shepard, J., that the alimony provision in the integrated property settlement agreement which was not merged in the decree was not modifiable by the court under the doctrine laid down in Phillips v. Phillips, 93 Idaho 384, 462 P.2d 49 (1969). Merger depends not so much upon what the trial court may or may not order, but upon whether or not the parties intend that a judicial determination of their marital affairs be substituted for their previous contractual settlement. Where the record is clear, as it is here, that neither the parties nor the court intend the original settlement agreement to be supplanted by a judicial decree, then no merger has occurred, and the parties' rights are to be determined by their marital contract.

McFADDEN, Justice, specially concurring.

I concur in the opinion authored by Bistline, J. However, in view of the opinion of Shepard, J., wherein he concurs in part and dissents in part, I feel I should explain my position insofar as the case of Phillips v. Phillips, 93 Idaho 384, 462 P.2d 49 (1969), is concerned.

In Phillips this court discussed the import of the doctrine of merger insofar as the effect it has on a separation agreement of the parties when the provisions of that decree are "merged" in a divorce decree. Therein the court stated at 386, 462 P.2d 49:

"If the agreement is so merged into the decree, the rights and duties of the parties are no longer determined by reference to the agreement or contract of the parties, but rather are determined by and enforced through the judgment and the decree of the court."

I continue to adhere to that statement.

In the instant case after the proceedings for divorce had been instituted the parties entered into a "Property Settlement Agreement" wherein the parties agreed as to what property was their community property, and also listed the separate property of the husband. The agreement also made provision for the support and maintenance of their minor children, and also provided for the husband to pay the wife $800 per month as alimony as long as she remained unmarried and living. These monthly payments could be increased by an increase in the cost of living index up to $850 per month.

The property settlement agreement also provided that in the pending divorce proceedings, if a divorce be granted to either or both parties, it was to be controlling as to the property settlement and should be submitted to the court for approval "but not merged as a part of judgment."

The original decree of divorce entered on November 25, 1969, insofar as alimony was concerned, provided:

"That the defendant is ordered and directed to pay to the Clerk of the District Court of Ada County, State of Idaho, on or before the 15th day of each and every month, the sum of $800 per month as alimony, so long as the plaintiff lives and remains unmarried, and the Clerk is hereby directed to pay said amount to plaintiff; provided, however, that the award for alimony be adjusted to reflect the increases in the cost of living index prepared by the Bureau of Labor Statistics of the United States Government between January 1 and December 31 of each year, commencing with the year 1971, and further provided that said adjustments by reason of cost of living increases shall not cause the alimony to exceed $850.00 per month."

When the trial court ordered Mr. Sullivan to pay $800 per month (plus cost of living increases up to $850 per month) as alimony, it disregarded the nonmerger provisions of the property settlement agreement as concerned alimony. If Mr. Sullivan was dissatisfied with that portion of the decree, insofar as it split the alimony provisions from the property settlement provisions of the agreement, it was incumbent upon him to appeal from that portion of the decree, which he did not do. The effect of the provision of the decree insofar as alimony is concerned brought it within the jurisdiction of the court...