Bryant v. Bryant

• Court: Maine Supreme Court
• Writing for the Court: Before McKUSICK; McKUSICK; POMEROY; ARCHIBALD
• Citation: Bryant v. Bryant, 411 A.2d 391 (Me. 1980)
• Decision Date: 20 February 1980
• Parties: Constance E. BRYANT v. Robert T. BRYANT.

Page 391

411 A.2d 391

Constance E. BRYANT v. Robert T. BRYANT.

Supreme Judicial Court of Maine.

Feb. 20, 1980.

Daniel G. Lilley (orally), E. Paul Eggert, Portland, for plaintiff.

Cloutier & Joyce by Edward S. David (orally), Edward H. Cloutier, Livermore Falls, for defendant.

Before McKUSICK, C. J., and WERNICK, GODFREY, NICHOLS and GLASSMAN, JJ.

McKUSICK, Chief Justice.

Defendant husband appeals from a judgment of divorce entered in the Superior Court, Androscoggin County. He asserts error in those portions of the judgment: (a) dividing the "marital property" acquired prior to 1972; (b) ordering him to pay alimony to the wife; and (c) ordering him to pay part of the wife's counsel fees. We sustain only the husband's contention concerning that portion of the alimony decree ordering him to maintain life and health insurance for the benefit of the wife. To that extent, but only to that extent, we vacate the decree, and remand the case to the Superior Court for further proceedings in regard to the insurance.

Aside from an order dissolving the bonds of matrimony, which is not challenged on this appeal, the Superior Court's decree included the following specific provisions:

(I)t is ordered . . . that:

(2) The Livermore real estate ¹ consisting of (the marital home) and the land on which it is situated, presently held in joint tenancy, be set apart as follows:

A tenancy in common is created with a four fifth (4/5) interest set apart to Constance Bryant and a one fifth (1/5) interest set apart to Robert Bryant, which tenancy in common is subjected to, and encumbered by, a life estate in Constance Bryant . . . .

(4) Mr. Bryant pay the sum of $85.00 per week to Mrs. Bryant as, and for, alimony. Mr. Bryant is further ordered to continue making monthly payments on the home . . . mortgage loan . . . .

(5) Mr. Bryant maintain term life insurance in the sum of $25,000 with Mrs. Bryant as the irrevocable beneficiary.

(6) Mr. Bryant . . . maintain Blue Cross/Blue Shield and major medical insurance for Mrs. Bryant on his policy coverage at his place of employment.

(7) Mr. Bryant be required to pay the sum of $1,000.00 toward all counsel fees in this case.

The husband appeals to this court, challenging all of the above-quoted portions of the judgment. The wife has filed no cross-appeal but moves in this court for the allowance of counsel fees on the appeal.

I. The Property Division

A. Statutory Challenge

The husband contends that the Superior Court had no jurisdiction to divide the marital property of the parties acquired prior to January 1, 1972, without a specific request in writing by both of them. He argues that the broad grant of power in subsection 1 ² of 19 M.R.S.A. § 722-A (Supp.1979) is limited by subsection 4 added by P.L.1977, ch. 226, § 2, effective October 24, 1977. That 1977 amendment provides:

4. Disposition of Marital Property. If both parties to a divorce action also request the court in writing to order disposition of marital property acquired by either or both of the parties to the divorce prior to January 1, 1972, . . . the court shall also order such disposition . . . .

The inference the husband seeks to draw from that 1977 amendment is squarely refuted by its legislative history. The statement of facts attached to the corresponding legislative document, L.D. 1762, clearly reveals that subsection 4 was enacted solely for the purpose of meeting the possible constitutional problem adverted to in a footnote in Young v. Young, Me., 329 A.2d 386, 390 n. 4 (1974). ³ In actuality, after the 1977 legislature adjourned and before the 1977 amendment became effective on October 24, 1977, the Law Court, in its opinion in Fournier v. Fournier, Me., 376 A.2d 100 (1977), considered the question raised in the Young footnote and decided that section 722-A could be applied to pre-1972 property without raising any constitutional difficulty. This holding of Fournier was reaffirmed in Stevens v. Stevens, Me., 390 A.2d 1074 (1978). Although neither Fournier nor Stevens addresses the negative implication argument put forth here by defendant husband, those decisions conclusively establish that the sole purpose for enacting the 1977 amendment never in fact existed. Thus, the sentence quoted above is an unnecessary grant of a limited power to the divorce court, which already is vested with the general power as well as duty to deal with all marital property, whenever acquired. The legislature demonstrated no intent to cut down the grant of authority to the divorce court; it was trying merely to protect as much as it could against any possible claim of constitutional invalidity.

B. Court's Exercise of Discretion

The division of marital property is a matter committed to the sound discretion of the divorce court. Zillert v. Zillert, Me., 395 A.2d 1152 (1978); Fournier v. Fournier, supra. Although in many instances it is undesirable to require the former spouses to continue as co-owners of the marital estate, Zillert v. Zillert, supra at 1157, on these facts it was not an abuse of discretion for the court to create a tenancy in common, thus avoiding the significant hardship to the wife if the property were sold. See Tibbetts v. Tibbetts, Me., 406 A.2d 70, 77 n. 11 (1979). The proportionate shares of the tenancy awarded to the parties were well within the court's discretion.

II. The Alimony Award

The husband alleges error in the decree on the ground that the Superior Court exceeded its statutory authority by specifically ordering him:

(a) to continue making monthly mortgage payments on the Livermore property;

(b) to maintain $25,000 in term life insurance with plaintiff as the irrevocable beneficiary; and

(c) to obtain health insurance for plaintiff "on his policy coverage at his place of employment."

A divorce court is vested with broad authority to order one spouse to pay the other alimony or payments in lieu of alimony. The only express restrictions placed on that authority by the controlling section, 19 M.R.S.A. § 721 (Supp.1979), ⁴ are the requirements that such payments 1) be reasonable and 2) "have regard to (the payor) spouse's ability to pay." Although the contrast between the first and third sentences of section 721 suggests that the term "alimony" by itself refers only to payments at regular periodic intervals, the statutory authority to order payment of "a specific sum" "instead of alimony" "payable in such manner and at such times as the court may direct" evinces a legislative intent to give the divorce court broad options in selecting the appropriate method for paying what we will comprehensively call by the single name "alimony." Section 721 also emphasizes the breadth of the divorce court's power in fashioning its alimony decree by declaring:

This section shall not limit the court . . . from . . . conditioning the alimony award in any manner on terms that the court deems just.

We reject the notion that the term "alimony" excludes anything but direct payments to the payee spouse. Payments to a third party for the benefit of the other spouse, whether in the form of mortgage payments or health and life insurance, are the practical equivalent to both spouses of direct payments, but carry the added feature of assuring the court and the payor spouse that the money will in fact be applied to meet the payee's identified needs.

We similarly reject the notion that the term "alimony" excludes anything but periodic payments limited in amount to the current needs of the payee spouse. Although meeting such current needs is of course the most common and basic purpose of alimony, the statutory provision for the payment of a "specific sum" at times other than periodically demonstrates that the court's alimony order may require payments in anticipation of the payee spouse's needs. The maintenance of life insurance which, in the event the payor spouse predeceases the payee, can take the place of periodic payments after the payor's death is just such special payment arrangement as section 721 authorizes.

Although the Law Court has never had occasion to address the issue raised by the husband, we find ample support in the case law of other jurisdictions for orders requiring a payor spouse: (1) to continue making mortgage payments, Arakaki v. Arakaki, 54 Haw. 60, 298, 502 P.2d 380 (1972); Kinsey v. Kinsey, 143 W.Va. 574, 103 S.E.2d 409 (1958); Bowman v. Bowman, 29 Cal.2d 808, 178 P.2d 751 (1947); (2) to provide health care insurance for the benefit of the payee spouse, Brown v. Brown, 335 Mich. 511, 56 N.W.2d 367 (1953); and (3) to maintain or provide life insurance with the payee spouse as the irrevocable beneficiary, Wiltz v. John Hancock Mutual Life Ins. Co., 58 Mich.App. 604, 228 N.W.2d 484 (1975); Williams v. Williams, 44 Wis.2d 651, 171 N.W.2d 902 (1969); Southard v. Southard, 262 Mass. 278, 159 N.E. 512 (1928). As to the maintenance of life insurance, many jurisdictions refuse to recognize the authority to make such an order on the ground that the obligation to pay alimony ceases upon the death of the payor spouse. E. g., Todd v. Todd, 311 So.2d 769 (Fla.App.1975); Menor v. Menor, 154 Colo. 475, 391 P.2d 473 (1964). Our Maine statute, however, has been construed as authorizing alimony after the death of the payor spouse. Stratton v. Stratton, 77 Me. 373, 52 Am.Rep. 779 (1885). See Miller v. Miller, 64 Me. 484, 487 (1874).

Thus there is no rule of law that alimony payments may not include payments for mortgage interest and amortization, health and life insurance, and other benefits to the payee spouse purchased from a third party. Other than the limiting factor of the payor spouse's ability to pay, all the considerations that the divorce court must take into account in framing its alimony decree are encompassed in the statutory requirement that the ordered payments be "reasonable." Alimony must be reasonable both in amount and in the method of payment, giving regard to the situation, both at present and for the...