Deatherage v. Deatherage
| Decision Date | 10 January 1984 |
| Docket Number | CA-CIV,No. 1,1 |
| Citation | 681 P.2d 469,140 Ariz. 317 |
| Parties | In re the Marriage of Beverly June DEATHERAGE, Petitioner-Appellee, v. James Harold DEATHERAGE, Respondent-Appellant. 6242. |
| Court | Arizona Court of Appeals |
The appellant, James H. Deatherage (husband) appeals from that portion of a decree of dissolution of marriage awarding appellee, Beverly J. Deatherage (wife), $750.00 per month spousal maintenance.
The parties were married on July 3, 1951. On September 12, 1980, the wife filed for dissolution of marriage. Prior to trial on the petition for dissolution, the parties entered into a stipulation dividing their property and further providing that only two issues remained for trial: the amount, if any, of spousal maintenance, and whether there was to be any award of attorney's fees. The only issue now before this court is that of spousal maintenance. Husband's specific contention is that the trial court erred in not considering certain non-income producing real properties apportioned and reconfirmed to the wife by the stipulation in determining her eligibility to receive spousal maintenance pursuant to A.R.S. § 25-319(A). We agree.
The question of spousal maintenance is left to the sound discretion of the trial court, and an appellate court will not substitute its judgment for that of the trial court unless there has been a clear abuse of discretion. Cooper v. Cooper, 130 Ariz. 257, 635 P.2d 850 (1981). However, spousal maintenance is impermissible unless a spouse meets the requirements of A.R.S. § 25-319(A). In re Marriage of Hinkston, 133 Ariz. 592, 653 P.2d 49 (App.1982).
A.R.S. § 25-319(A) provides as follows:
A. In a proceeding for dissolution of marriage or legal separation, or a proceeding for maintenance following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse, the court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance:
1. Lacks sufficient property, including property apportioned to such spouse, to provide for his or her reasonable needs; and
2. Is unable to support himself or herself through appropriate employment or is the custodian of a child whose age or condition is such that the custodian should not be required to seek employment outside the home or lacks earning ability in the labor market adequate to support himself or herself. (emphasis added)
Pursuant to the statute, the trial court was required to find that the wife lacked sufficient property to provide for her reasonable needs and was unable to support herself through appropriate employment or lacked earning ability in the labor market to support herself prior to awarding the wife maintenance.
Husband concedes that the trial court's determination that the wife was either unable to support herself through appropriate employment or lacked earning ability in the labor market is sufficiently supported by the record to withstand appellate review. See Cooper v. Cooper, supra. As noted above, husband's contention is that the wife possesses sufficient property to provide for her reasonable needs.
The record indicates that as a result of the parties' stipulation regarding division of property, the wife received cash and bank deposits totaling approximately $54,000, Arizona Public Service stock worth approximately $13,700, a receivable for approximately $9,000, as well as her clothing and jewelry, the household furnishings and appliances, her individual retirement account, automobile, and the family residence. Additionally, the wife received five acres of undeveloped real property having an equity value of approximately $77,000, all of the above constituting her share of the parties' community property. As her separate property, the wife had reconfirmed to her a five-acre parcel of undeveloped real property valued at $95,000.
The husband properly notes that certain of the property received by the wife will necessarily be used by her and not be available for her support. This would include her clothing and jewelry, the household furnishings and appliances, her automobile, and even the family residence. Additionally, the $9,000 receivable, owed by the parties' son, and the wife's individual retirement account are not reasonably capable of producing income to go toward the wife's support. Nonetheless, the wife possesses "liquid" assets totaling nearly $68,000 as well as real property with a total equity of approximately $172,000.
As the husband has pointed out, the record clearly indicates that the trial court chose not to consider the substantial non-income producing property of the wife in deciding the maintenance issue:
THE COURT: The record may show that I just had a bench conference with counsel. Taking the petitioner's position in the strongest light, to-wit: One: She needs $1,400 a month; Secondly: Only the two liquid assets should be considered by the Court in counting income towards her own maintenance, which would be $5,400, approximately, in cash and $13,700 in stock--oh, I meant to say $54,000, giving a total in round figures of $68,000. At a ten percent rate, which this Court would feel would be relatively conservative today, that would then give her approximately $6,800 a year of income, and that her need of $1,400 a month comes to $16,800 or a need of $10,000, which would be a little bit over $800 per month. Fine.
The effect of wife's argument would be to read into the statute: sufficient "income producing" property, rather than the words "sufficient property" as chosen by the legislature. The legislature is presumed to express its meaning as clearly as possible and therefore words used in a statute are to be accorded their obvious and natural meaning. Toney v. Bouthillier, 129 Ariz. 402, 631 P.2d 557 (App.1981). "Property" in its ordinary sense is not limited to income producing...
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