Ellsworth v. Ellsworth

Decision Date11 December 1981
Docket NumberNo. 13052,13052
Citation97 N.M. 133,637 P.2d 564,1981 NMSC 132
PartiesHoward S. ELLSWORTH, Petitioner-Appellee, v. Betty O. ELLSWORTH, Respondent-Appellant.
CourtNew Mexico Supreme Court
LeRoi Farlow, Albuquerque, for respondent-appellant
OPINION

PAYNE, Justice.

This appeal requires us to reevaluate certain principles of law governing divorce decrees. The husband filed for divorce and the wife counterclaimed. The parties had been married thirty years and all their children were over 18 years at the time of the divorce. The appellant contends that the trial court committed error in: (1) failing to award her alimony; (2) failing to grant her attorney's fees; (3) reducing the value of the Keogh retirement plan; and (4) requiring her to pay half of her husband's 1979 income tax. We hold that the court did not abuse its discretion as to the last three items. Accordingly, we affirm as to those issues and discuss only the issue of alimony.

The decision to grant or deny alimony is within the sound discretion of the trial court, and its decision will be altered only upon a showing of an abuse of that discretion. Seymour v. Seymour, 89 N.M. 752, 557 P.2d 1101 (1976); Mindlin v. Mindlin, 41 N.M. 155, 66 P.2d 260 (1937). Section 40-4-7 B(1), N.M.S.A.1978, the statutory basis for granting alimony, states:

B. On final hearing, the court:

(1) may allow either party such a reasonable portion of the spouse's separate property, or such a reasonable sum of money to be paid by either spouse, either in a single sum, or in installments, as alimony, as under the circumstances of the case may seem just and proper * * *.

Some of the factors to be considered in determining when it is "just and proper" to award alimony are "The needs of the wife, her age, health and the means to support herself, the earning capacity and the future earnings of the husband, the duration of the marriage, and the amount of property owned by the parties." Michelson v. Michelson, 86 N.M. 107, 110, 520 P.2d 263, 266 (1974).

The trial court's refusal to award alimony was due to a determination that the wife's needs were adequately met by payments received from real estate sales contracts she received as a substantial portion of her share of the property settlement. The wife argues that this treatment is contrary to certain language found in Hurley v. Hurley, 94 N.M. 641, 615 P.2d 256 (1980).

Property settlements recognize the effort expended by both husband and wife in creating an estate. See Hughes v. Hughes, 91 N.M. 339, 573 P.2d 1194 (1978). Community property is to be divided equally. Michelson v. Michelson, supra. Alimony represents an entirely different consideration. It is a continuation of the dependent spouse's right to support, Burnside v. Burnside, 85 N.M. 517, 514 P.2d 36 (1973); Chavez v. Chavez, 82 N.M. 624, 485 P.2d 735 (1971), based on need, ability to self-support, and the equities of the particular situation, Michelson v. Michelson, supra. Problems have arisen where the concepts of alimony and property division are mixed.

In Michelson, supra 86 N.M. at 111, 520 P.2d at 267, the Court in dictum stated that "an important factor in determining an award of alimony is the amount of property distributed to the wife as her share of the community interest." The Court also discussed the relationship between property settlements and alimony in subsequent cases. See Brister v. Brister, 92 N.M. 711, 594 P.2d 1167 (1979) (the alimony provisions are entirely severable from property settlement provisions); Hughes v. Hughes, supra (award of alimony not in order until the extent of property awarded to each party is determined); Seymour v. Seymour, 89 N.M. 752, 557 P.2d 1101 (1976) (applying Michelson factors); Hazelwood v. Hazelwood, 89 N.M. 659, 556 P.2d 345 (1976) (the right of alimony is a continuation of the right to support). See also Harper v. Harper, 54 N.M. 194, 217 P.2d 857 (1950) (the court may award and set over to the wife a lump sum in lieu of alimony out of the husband's interest in the community).

In the Hurley case the Court stated that a wife "should not be required to sell her share of the community property in order to supplement the amount allowed her by way of alimony to meet the daily living expenses of herself and her...

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37 cases
  • Prahinski v. Prahinski, 62
    • United States
    • Court of Appeals of Maryland
    • September 1, 1988
    ......Hurley, 94 N.M. 641, 615 P.2d 256 (1980), overruled on other grounds by Ellsworth v. Ellsworth, 97 N.M. 133, 637 P.2d 564 (1981); Dorton v. Dorton, 77 N.C.App. 667, 336 S.E.2d 415 ......
  • Endres v. Endres, 18812
    • United States
    • Supreme Court of South Dakota
    • June 26, 1995
    ......Hurley, 94 N.M. 641, 615 P.2d 256 (1980) (overruled, on other grounds by Ellsworth v. Ellsworth, 97 N.M. 133, 637 P.2d 564 (1981)); In re Marriage of Fleege, 91 Wash.2d 324, 588 ......
  • Dugan v. Dugan
    • United States
    • United States State Supreme Court (New Jersey)
    • February 28, 1983
    ......641, 615 P.2d 256 (1980) (doctor's practice), overruled on other grounds, Ellsworth v. Ellsworth, 97 N.M. 133, 637 P.2d 564 (1981); In re Marriage of Goger, 27 Or.App. 729, 557 P.2d ......
  • Gabriele v. Gabriele
    • United States
    • Court of Appeals of New Mexico
    • January 31, 2018
    ...is not sufficient consideration for a promise made in return"), overruled on other grounds by Ellsworth v. Ellsworth , 1981-NMSC-132, ¶ 6, 97 N.M. 133, 637 P.2d 564.6 We note that two days after submitting her written closing argument, Wife filed a document titled "Supplement to Closing Arg......
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