Gortsema v. Gortsema

• Decision Date: 24 December 1968
• Docket Number: No. 10152,10152
• Citation: 92 Idaho 684,448 P.2d 777
• Parties: John E. GORTSEMA, Plaintiff-Appellant, v. Myrtle E. GORTSEMA, by her Guardian, W. L. Dempsey, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 777

448 P.2d 777

92 Idaho 684

John E. GORTSEMA, Plaintiff-Appellant, v. Myrtle E. GORTSEMA, by her Guardian, W. L. Dempsey, Defendant-Respondent.

No. 10152.

Supreme Court of Idaho.

Dec. 24, 1968.

William H. Foster, Grangeville, for appellant.

Paul G. Eimers, Grangeville, for respondent.

McFADDEN, Justice.

On April 14, 1961, appellant John E. Gortsema, as plaintiff, instituted an action for divorce against Myrtle E. Gortsema, respondent herein, seeking dissolution of the marriage and division of the parties' community property. Mrs. Gortsema filed an answer, on August 1, 1961, by her guardian who was previously appointed by the probate court of the county. In the answer, the allegations of extreme cruelty alleged in the complaint were denied. She also prayed for a division of the community property. At the time of filing the answer a 'Property Settlement Agreement' had already been executed by appellant and the guardian. This agreement was approved by the probate judge on the date of its execution and was introduced as an exhibit in the divorce action.

Following trial the court made the following finding, material to the issues now before this court:

'4. That the parties have entered into a property settlement agreement dated July 28, 1961, setting forth their distribution and division of the community property, to-wit:

(a) That Myrtle E. Gortsema shall receive as her sole and separate property, free and clear of all community debts and obligations, except as otherwise provided, to-wit:

(Description of real property)

'The plaintiff John E. Gortsema shall pay to the second party (Myrtle E. Gortsema) for her support and maintenance the sum of Three Hundred and no/100 ($300.00) monthly, so long as she shall live, with the first of such monthly payments becoming due and payable on the 15th day of August, 1961, and continuing each month thereafter during the term of her natural life.'

The court in its conclustions of law held:

'2. That the property settlement agreement dated June 28, 1961, which terms the findings of fact set forth in detail as to the property to be transferred to the defendant Myrtle E. Gortsema, is in all respects a fair, just and equitable settlement of the community property acquired by the parties during the marriage of the parties during the marriage of the parties and should be set over to the defendant Myrtle E. Gortsema as her sole and separate property by decree of this Court.'

By its decree of August 1, 1961, the court dissolved the marriage, specifically awarded real and personal property to the respective parties and then provided:

'4

'That the defendant Myrtle E. Gortsema have and recover from the plaintiff John E. Gortsema the sum of $300.00 per month, beginning August 15, 1961, for her support and maintenance, for the rest of her natural life, together with the sum of $500.00 reasonable attorney's fees and costs fixed in the amount of $6.00.'

No appeal was taken from the judgment entered in the divorce action. In April 1967 the appellant moved for a modification of the above quoted paragraph 4 of the decree, on two grounds:

1. That the phrase 'for the rest of her natural life,' as contained in paragraph 4 of the decree is in violation of the provisions of I.C. § 32-706 and void;

2. That since the decree, there have been material changes justifying a modification of that provision of the decree. This motion was supported by appellant's affidavit. The guardian, on behalf of respondent, filed an affidavit denying that there was any material change of circumstances as existed at the time of entry of the decree. The affidavit admitted that respondent's estate has increased by a material amount. Respondent also asserted that the court was without jurisdiction to modify the provision for support contained in the decree.

The trial court, after hearing was had on the issues presented by the affidavit in support of appellant's motion for modification and respondent's affidavit, entered its order denying appellant's motion. The court found that appellant was the sole owner of the corporate stock of Gortsema Motors, Inc., except for two qualifying shares. The court further found that since entry of the decree of devorce the earnings of Gortsema Motors, Inc. have decreased from an average annual net earning of $1,500.00 to an average net loss of about $1,600.00 and that the salary paid appellant by the company has been reduced from about $18,000.00 to $15,000.00 annually, plus dividends of $480.00 on other corporate stock. The court further found that respondent's estate (guardianship estate) had increased by over $20,000.00 since the divorce, that expenses for her maintenance in a nursing home have increased from $270.00 to $300.00 per month, that her income for 1966 was $14,878.00 and that disbursements on her behalf amounted to $7,472.62.

In its conclusions of law, the trial court held that appellant has shown no appreciable loss of net worth since the decree of divorce and that his income is ample to pay his living expenses and to pay the monthly support for respondent. The court concluded that the fact that the property respondent received from the property settlement has yielded a good return and that her estate has increased is irrelevant to the issue of change of circumstances. The court also held that the provision for support contained in the property settlement agreement is not separable from other portions thereof and that it was the intent of the parties that it be integrated into the whole agreement. The court therefore held that it was without power or authority to modify such provision.

The trial court's finding as to appellant's financial status and income is fully sustained, not only by appellant's testimony, but also by the exhibits, consisting of copies of individual and corporation income tax returns and financial statements of the corporation. His individual tax returns for the years 1961 through 1966 reflect that appellant had gross incomes (before itemized deductions) ranging between $20,650 and over $29,000.

The burden of proving that there has been such a material and permanent change of conditions and circumstances as to justify a modification of support payments for a former wife is on the party seeking the modification. Simpson v. Simpson, 51 Idaho 99, 4 P.2d 345 (1931). Only substantially changed circumstances and conditions of the parties will warrant a modification of the divorce decree. Daniels v. Daniels, 82 Idaho 201, 351 P.2d 236 (1960). It is our conclusion that the trial court did not err in refusing to modify the decree on the basis of an asserted change of circumstances.

Appellant asserts that the trial court erred in not modifying the decree of divorce because of the statement therein that the monthly payments to respondent shall continue 'for the rest of her natural life.' In McHan v. McHan, 59 Idaho 496, 84 P.2d 984 (1938), this court held that a default decree of divorce which provided that an allowance of $35.00 per month, based upon a confirmed agreement between the parties and the relief prayed for in the wife's complaint, did not proceed from any consideration of property rights, but was only a provision for an allowance for the wife's support under the provisions of what is now I.C. § 32-706. This court held that the phrase 'during her lifetime,' employed in the decree to indicate the term for which payments to the wife were to continue, should have been stricken and that the decree as to support payments was subject to modification.

The phrase 'for the rest of her natural life' as used in the present decree in reference to the payments to be made to respondent is surplusage in any event. If the provision for support as contained in the decree is considered as being a part of an intergrated property settlement agreement, not severable from other portions of the agreement, the obligation arises from the contract and not from the court decree; if however the support provisions of the decree be considered an allowance for support under the provisions of I.C. § 32-706, the phrase is meaningless,...