Cherpelis v. Cherpelis

• Decision Date: 15 February 1996
• Docket Number: No. 15885,15885
• Citation: 1996 NMCA 37,914 P.2d 637,121 N.M. 500
• Parties: George C. CHERPELIS, Petitioner-Appellant, v. Barbara Jane CHERPELIS, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 637

914 P.2d 637

121 N.M. 500

George C. CHERPELIS, Petitioner-Appellant, v. Barbara Jane CHERPELIS, Defendant-Appellee.

No. 15885.

Court of Appeals of New Mexico.

Feb. 15, 1996.

Certiorari Denied March 22, 1996.

[121 N.M. 501] Appeal from the District Court of Bernalillo County; William F. Lang, District Judge.

Barbara L. Shapiro, Albuquerque, for Appellant.

Joseph J. Mullins, Albuquerque, for Appellee.

OPINION

BOSSON, Judge.

1. This appeal arises from an unsuccessful attempt by George Cherpelis (Husband) to terminate alimony awarded to his former wife, Barbara Jane Cherpelis (Wife), upon their divorce. Husband argues primarily two issues: (1) whether public policy requires termination of alimony or a presumption to that effect when the recipient spouse and a live-in companion conduct their lives as if they were married and (2) whether the doctrine of issue preclusion binds the non-moving party with respect to prior judicial findings regarding alimony unless that party proves changed circumstances. We affirm the district court on these and all other issues.

BACKGROUND

2. The parties were divorced in 1982 after twenty-eight years of marriage. During the marriage, Husband worked in his law practice and Wife was a homemaker. The divorce decree incorporated a settlement agreement which called for Husband to pay Wife alimony of $3200 per month which was reduced to $2000 per month shortly thereafter. The parties agreed that alimony would terminate if Wife remarried or upon the death of either party; no other condition was placed on the duration of the alimony. For almost ten years, Husband made alimony payments of $2000 per month.

3. On October 16, 1991, Husband moved to terminate or modify alimony because of changed circumstances, citing his diminished financial position and Wife's improved earning potential as Wife had begun working as a substitute teacher after the divorce. In August 1992, after an evidentiary hearing, the trial court reduced Husband's alimony obligation to $650 per month. Neither party appealed.

4. Approximately fifteen months later, in October 1993, Husband again sought to terminate alimony, alleging changed circumstances. As evidence of changed circumstances, Husband demonstrated that Wife's relationship with a live-in companion provided her with additional income, reduced her expenses, and allegedly reduced her need. Husband also alleged that his income was substantially less than had been anticipated by the trial court in 1992. The trial court referred the issue to a special master who recommended that the court deny Husband's motion. The trial court adopted the special master's recommendations and continued alimony at $650 per month. The trial court also awarded attorney fees of $8880.06 to Wife.

EFFECT OF A LIVE-IN RELATIONSHIP UPON ALIMONY

5. At trial, Husband produced evidence regarding Wife's economic relationship with a live-in companion. They jointly purchased a new car. She had access to his bank accounts under certain conditions. They shared monthly household expenses, such as utilities, house repairs, and taxes. They shared their economic lives much as husband and wife.

6. Husband acknowledges that New Mexico does not recognize a "de facto" marriage. Hazelwood v. Hazelwood, 89 N.M. 659, 661, 556 P.2d 345, 347 (1976). Under New Mexico law a live-in relationship is not, by itself, grounds for terminating alimony, even where parties hold themselves out as husband and wife. Brister v. Brister, 92 N.M. 711, 715, 594 P.2d 1167, 1171 (1979); Hazelwood, 89 N.M. at 660-61, 556 P.2d at 346-47. The Supreme Court in Brister made clear that although a live-in relationship would not automatically terminate alimony, the economic factors of the relationship must be examined to determine whether they alter the need of the recipient spouse. Brister, 92 N.M. at 715, 594 P.2d at 1171. The Court stated: "Actual need being the criterion, what matters if the money comes from an inheritance, a crap game or the largess of a live-in lover. We hold that this additional resource of Mrs. Brister's may be weighed in determining the amount of alimony that should be paid." Id. Under existing New Mexico law, the payor spouse gets the benefit of a fresh look in that the court's analysis of resources and need is based on the current economic realities of the recipient spouse. In this case, Wife acknowledged the financial contributions of the companion and presented a budget showing both his contributions and a continuing need for spousal support. The trial court took these new economic factors into consideration; Brister does not require more.

7. Nonetheless, Husband argues that under some circumstances, a live-in relationship becomes so much like a marriage that it should be considered one for purposes of terminating alimony. Husband cites Kuert v. Kuert, 60 N.M. 432, 292 P.2d 115 (1956), in which our Supreme Court held that remarriage creates a prima facie case that alimony should terminate, leaving room for the recipient to demonstrate "extraordinary conditions" for continued support. Id. at 439, 292 P.2d at 119. Husband urges us to apply this same analysis to cohabitation. In the alternative, Husband urges us to create a presumption to that effect and shift the burden of persuasion to Wife to show why alimony should not be terminated.

8. We decline to make either change to our law. The Supreme Court's rationale in Kuert is limited to an actual remarriage which created "a duty of support." Id. The Court in Brister could have applied that same rationale to a live-in relationship but did not do so. Brister, 92 N.M. at 715, 594 P.2d at 1171. We affirm the trial court on this issue.

PRECLUSIVE EFFECT OF PRIOR MODIFICATION ORDER

First Motion To Terminate Alimony.

9. In 1992, on the first motion to terminate alimony, the trial court found that Wife's reasonable expenses were $2000 per month, but that "[s]he is capable of earning $1,350/month 'net' [$1,450/month gross] income with her present employment and ability toward her $2,000/month needs." The net figure represented approximately $700 per month actual earnings and another $650 per month imputed earnings, which the trial court felt "[s]he is capable of earning." Based on this finding, the 1992 court reduced Husband's alimony to $650 per month, the difference between Wife's reasonable expenses and her earning potential ($2000 less $1350). The court found that Wife "CANNOT afford to be without at least $650 per month, and critically needs that amount to avoid disastrous financial and livelihood consequences."

Second Motion To Terminate Alimony.

10. During the trial on the second motion to terminate alimony, Husband contended that the financial contributions of Wife's live-in companion enabled her to reduce her monthly expenses to $1314, approximately the same amount as the total of her actual and imputed earnings. Based on that change, Husband argued that Wife no longer needed alimony because her expenses equaled her projected earnings.

11. Upon recommendation of the special master, the lower court declined to modify alimony. The court concluded that Wife "needs at least $650 per month in spousal support to meet her financial needs," and Husband "has the ability to continue paying alimony to [Wife] at the rate of $650 per month." In addition, the court concluded that Husband "has not demonstrated a material change of circumstances since the last order on spousal support, (August, 1992) sufficient to modify his present alimony obligation." The court found that Wife had made "reasonable efforts to reduce her indebtedness," and that Husband had not done the same. The court also found that Wife's earning capacity had diminished since 1992 "[b]y virtue of her age, education, and training." This followed the special master's conclusion that: "To the extent that [Husband's] income earning capacity has decreased because of his age, the same is true of [Wife]. It is therefore unreasonable to continue to impute a $1,350 net monthly income to her." The court adopted intact the special master's report.

12. On appeal, Husband disagrees that Wife's earning capacity is any less now than it was in 1992. Husband criticizes Wife for not working hard enough to support herself and become independent of alimony, and he finds fault with the court for not making her do so. See Lovato v. Lovato, 98 N.M. 11, 13, 644 P.2d 525, 527 (1982) ("[T]rial court must not allow a spouse to abdicate the responsibility for his or her own support...."). Husband argues that instead of working as a part-time substitute teacher, Wife should be required to work full-time, during the summer months as well as the school year, and to tutor children when not substitute teaching. At the very least, Husband would impute to Wife an annual income equal to the minimum wage for full-time employment.

13. Wife testified about her employment as a substitute teacher. She has worked whenever called by the school system and earned, on the average, $650 to $700 per month. Wife has been unable to increase her income by outside tutoring. Her one effort at advertising for tutoring students proved unsuccessful. Wife felt she was not competitive with most tutors because she lacked a teaching certificate. It is not clear how much additional education she would need to become certified. Even if she obtained her certificate, Wife testified that, at age 64, she was too old to expect full-time employment with the school system. In sum, Wife testified that she had done all that could reasonably be expected of her and that her actual earnings were far less than what the court had previously imputed. Husband presented no evidence that additional employment for Wife was actually available. See Rabie v. Ogaki, 116 N.M. 143, 148, 860 P.2d 785, 790 (Ct.App.1993) (in circumstances of case payor spouse has burden of showing that recipient spouse has in fact become self-sufficient). The evidence supports the...