Crawford v. Crawford

• Court: Wyoming Supreme Court
• Writing for the Court: Before URBIGKIT, C.J., THOMAS, MACY, and GOLDEN, JJ., and ROONEY; ROONEY
• Citation: Crawford v. Crawford, 828 P.2d 1192 (Wyo. 1992)
• Decision Date: 13 April 1992
• Docket Number: No. 91-183,91-183
• Parties: Faye L. CRAWFORD, Appellant (Plaintiff), v. Harry C. CRAWFORD, Appellee (Defendant).

Page 1192

828 P.2d 1192

Faye L. CRAWFORD, Appellant (Plaintiff), v. Harry C. CRAWFORD, Appellee (Defendant).

No. 91-183.

Supreme Court of Wyoming.

April 13, 1992.

Richard Wolf of Wolf & Tiedeken, Cheyenne, for appellant.

Bernard E. Cole of Cole & Cole, Cheyenne, for appellee.

Before URBIGKIT, C.J., THOMAS, MACY, and GOLDEN, JJ., and ROONEY, J. (Retired).

ROONEY, Justice (Retired).

Appellant appeals from an order of the district court denying appellant's petition to modify the alimony award contained in the parties' divorce decree.

We affirm.

Appellant words the issues on appeal:

"1. Did the Appellant meet her burden of showing a substantial change of circumstances regarding her ability to work requiring a modification of the divorce decree?

"2. Did the District Court abuse its discretion in disallowing a warranted modification on the basis that Appellant's lack of earning capacity five years after the decree of the divorce could have possibly been anticipated at the time of the 1985 divorce?

"3. Does the fact that the alimony award was based on a negotiated property settlement agreement require a stronger showing of change of circumstances than an alimony award based on a decree not the result of a property settlement agreement?"

Appellee words them:

"Did the District Court gravely and clearly abuse its discretion in denying a modification of temporary alimony?

"Did the appellant meet her burden of proof of showing a substantial change of circumstances which would warrant a modification of alimony?"

At the time of the divorce (August 23, 1985) and prior thereto, appellee, a physician, was employed by the State of Wyoming as the Director of Preventive Medicine and Services, earning approximately $64,000 per year. A wrist injury necessitated termination of that employment. He is now employed as an Army physician at about the same salary. Beginning in 1980, appellant was employed on and off by Memorial Hospital in Cheyenne as a nurse. In 1984, the divorce was pending and she left the position (where she was earning $10.57 per hour) to move to South Carolina.

The provisions of the divorce decree with reference to the property division and alimony were pursuant to a negotiated property settlement agreement of the parties. Included therein was a provision requiring appellee to pay appellant $2,000 per month alimony for five years. ¹ The five years having elapsed, appellant instituted this action to modify the provision of the decree relating to the five-year limitation on alimony payments, alleging a change in circumstances consisting of a change in her health which prevents her from continuing employment as a nurse. At the time of the trial, she was making and selling T-shirts for a hospital.

CHANGE IN CIRCUMSTANCES

The district court received evidence concerning the existence or non-existence of a material change in appellant's health since the divorce in 1985. It found as a matter of fact that the health problems alleged by appellant to now exist and alleged to constitute a change of circumstances "were extant and known at the time of the divorce agreement and resultant order," and that there has not been a unexpected or material change in them since the divorce. There was evidence to support that finding.

In a claim made by appellant for social security disability payments, ² she stated that her health problems first started in 1971; that she was treated and hospitalized in Cheyenne for some of the problems in 1984 and 1985; and that she was born with one of the problems, i.e., partial paralysis of her left arm. She stated that:

"I resigned nursing in 1984 due to health (foot & back etc) also, I couldn't cary [sic] my own weight (turnig [sic], liftg [sic] patients) some employees I worked with complaing [sic]. Nursing was from 1981-1984. I should have never gone back into nursing--even tried to. There was a period of time I had too many 'sick days.' Had too many back, foot, ear, left arm problems. Couldn't handle the work."

Testimony of physicians with reference to the claim of a change in health reflected that the Erb's Palsy in her left arm and hand, which existed from the time of birth, has not changed since the time of the divorce, and that the pain in her lower back caused by spurs and arthritis was diagnosed in 1970, with the degenerative disc disease having started in 1960. Her foot problem also existed at the time of the divorce. Thus, there was evidence to support the district court's factual finding that there was not a sufficient change in the circumstances to warrant a modification of the divorce decree.

The oft-repeated rule by which we test the sufficiency of evidence on appeal is that we assume the evidence in favor of the successful party to be true, leaving out of consideration entirely the evidence in conflict therewith, and giving to the evidence of the successful party every favorable inference that can be reasonably and fairly drawn from it. The findings of fact made by the trial court are presumed to be correct, and we will not disturb such findings unless they are inconsistent with the evidence, clearly erroneous or contrary to the great weight of the evidence. In the Matter of Abas, 701 P.2d 1153, 1156 (Wyo.1985), and the cases cited therein. The finding here that there was not a substantial change in circumstances is not inconsistent with the evidence, clearly erroneous nor contrary to the great weight of the evidence.

ABUSE OF DISCRETION

Appellant argues that the district court abused its discretion (1) by applying a higher standard for modification of a divorce decree in cases in which the decree was based on a negotiated property settlement agreement than in cases in which there was no such agreement, (2) by noting that alimony is not favored, and (3) by noting that appellant has not shown a need for continued alimony.

The district court did note that the original order granting the divorce,...