Gardner v. Gardner

• Decision Date: 28 September 1994
• Docket Number: No. 23626,23626
• Citation: 881 P.2d 645,110 Nev. 1053
• Parties: Brian GARDNER, Appellant/Cross-Respondent, v. Ruth Ann GARDNER, Respondent/Cross-Appellant.
• Court: Nevada Supreme Court

Page 645

881 P.2d 645

110 Nev. 1053

Brian GARDNER, Appellant/Cross-Respondent, v. Ruth Ann GARDNER, Respondent/Cross-Appellant.

No. 23626.

Supreme Court of Nevada.

Sept. 28, 1994.

[110 Nev. 1054] Mark A. Jenkin, Las Vegas, for appellant/cross-respondent.

Orin G. Grossman, Las Vegas, for respondent/cross-appellant.

OPINION

STEFFEN, Justice:

The single issue raised by the appeal and cross-appeal concerns the spousal support awarded by the district court. Appellant/cross-respondent, Brian Gardner, contends that the lower court abused its discretion in awarding alimony. Respondent/cross-appellant, Ruth Ann Gardner, insists that the spousal award was inadequate both in amount and duration. On this record, we are constrained to agree that Ruth is entitled to additional relief, and accordingly reverse and remand.

FACTS

Brian and Ruth terminated their childless, twenty-seven-year-old marriage on August 14, 1992. At the time of their divorce, Brian was a forty-eight-year-old commercial airline pilot and Ruth was a forty-seven-year-old reading specialist with the Clark County School District. The couple married while attending college in Colorado. Ruth was supported by her father until she received her B.A. degree. Thereafter, the couple moved to California where Ruth commenced teaching and Brian continued with his schooling. Brian was not gainfully employed while pursuing his education. During this period, Brian obtained both a private pilot's license and a flight instructor's license at the expense of the community.

After Brian secured his degree, he and his wife moved to Pensacola, Florida, where Brian received a commission in the military and commenced Naval pilot training. Ruth was employed as a teacher throughout Brian's six and one-half years in the Navy, with the exception of a six-month period when Brian was stationed in Europe. After Brian's discharge from the Navy, the couple moved to Atlanta, Georgia, where Ruth again taught school while obtaining her Master's degree. Brian studied architecture at Georgia Tech and flew with the Naval Reserve. Two years later, the couple returned to California where Ruth again taught school and Brian obtained two degrees on the G.I. Bill. He also continued flying with the Naval Reserve and accepted employment as a charter pilot.

Eventually the couple moved to Las Vegas where Ruth commenced teaching year round and Brian began working as a commercial airline pilot. Although Ruth had filed for divorce on two prior occasions, and had thereafter dismissed the actions, the action which culminated in divorce was filed by Brian in 1991.

The district court divided the community property equitably and apparently without objection from either of the parties. At the time the decree of divorce was entered on August 14, 1992, Brian was earning an annual salary of approximately $75,000.00; Ruth's annual income was approximately $43,000.00.

The district court awarded Ruth temporary alimony in the amount of $1,300.00 per month for the first year, and $1,000.00 per month the second year in order to achieve "parity" in the two incomes by permitting Ruth to obtain additional professional, university credits. The court retained jurisdiction to review the award after the two-year period, but held that absent a substantial change in circumstances, the alimony would cease at that time. As noted previously, neither party accepted the court's decision with respect to the spousal support, thus prompting this appeal and cross-appeal.

DISCUSSION

In reviewing an award of spousal support, this court extends deference to the discretionary determination of the district court and withholds its appellate power to modify or reverse except in instances where an abuse of the trial court's discretion is evident from a review of the entire record. Shane v. Shane, 84 Nev. 20, 22, 435 P.2d 753, 755 (1968); see also Williams v. Waldman, 108 Nev. 466, 471, 836 P.2d 614, 617 (1992) (this court generally affirms district courts' rulings in divorce proceedings where supported by substantial evidence and free from appearance of abuse of discretion).

Brian's challenge to the alimony award is essentially based upon the following premises: (1) the lower court abused its discretion in taking the wooden approach of combining the salaries of the parties, dividing by two, and then equalizing the two incomes for an additional two years thus perpetuating the financial status of the parties as it existed during marriage; (2) Ruth clearly expressed no interest in additional educational pursuits, and was tenured and comfortable, and content with her existing career situation; and (3) Ruth was not in need of supplemental financial support from Brian.

Although Ruth does not seriously dispute the amount of the spousal support she was awarded by the district court, she contends that it would be more equitable to award her alimony of $1,625 per month for a period of twelve years. Ruth maintains that the award she seeks would yield an equitable recognition of the future earning capacities and retirement benefits of the parties. In addition, Ruth suggests that increasing the amount and duration of her alimony is justified for the following reasons: (1) there is no evidence in the record that she could earn an additional $1,000.00 or $1,300.00 per month within two years; (2) if she were to pursue a doctorate, required summer study would adversely impact her present contract pay, and in any event, receiving her doctorate degree would yield an increase in her annual income of only $1,000.00 to $2,000.00; (3) the trial court failed to take into consideration the disparity in the earning capacities of the two parties; (4) Brian achieved his current success and financial status because she supported him at the expense of her own career; that each time the couple moved in order to pursue Brian's career ambitions, she was forced to leave her employment and lose seniority and retirement benefits, the latter benefits then being used for the community; and (5) that as a result of her many sacrifices, Brian will be assured of much greater income and retirement benefits than Ruth.

Without burdening this opinion with unnecessary citations to legal precedent already established and readily accessible, we prefer to focus on this court's opinion in Heim v. Heim, 104 Nev. 605, 763 P.2d 678 (1988). As it relates to the instant case, Heim articulates the principles that have convinced us that the alimony award provided by the district court was inadequate and thus unfair. In Heim we stated that in deciding matters concerning alimony, the judge must "form a judgment as to what is equitable and just, having regard to the respective merits of the parties and to the condition in which they will be left by the divorce." Id. at 609, 763 P.2d at 680. Moreover, we noted that the " 'Buchanan guidelines' ¹ are simply an inexhaustive list of such common sense considerations as the financial condition of the parties (property, income, relative earning capacity), duration of the marriage, age and health of the parties" and the contribution each has made to the property owned by the community. Id. at 608-09, 763 P.2d at 680. Finally, in Heim, we emphasized that an award of alimony must be fair. Id. at 610, 763 P.2d at 681.

Our case law thus reflects the clear legislative mandate that authorizes the district courts to award alimony to the wife or husband in an amount that "appears just and equitable." NRS 125.150(1)(a).

Under Nevada's current statutory scheme regarding alimony, the legislature has provided for at least two types of alimony. The first, discussed above, is a form of alimony a court may award in order to satisfy the demands of justice and equity. A second type of alimony (rehabilitative alimony) is that provided by the legislature under ...