Heim v. Heim

• Decision Date: 28 October 1988
• Docket Number: No. 18240,18240
• Citation: 763 P.2d 678,104 Nev. 605
• Parties: Loretta Stevens HEIM, Appellant/Cross-Respondent, v. Dwight HEIM, Respondent/Cross-Appellant.
• Court: Nevada Supreme Court

Page 678

763 P.2d 678

104 Nev. 605

Loretta Stevens HEIM, Appellant/Cross-Respondent, v. Dwight HEIM, Respondent/Cross-Appellant.

No. 18240.

Supreme Court of Nevada.

Oct. 28, 1988.

Lynn R. Shoen, Las Vegas, for appellant/cross-respondent.

Greenman, Goldberg & Raby and Gabriel A. Martinez, Las Vegas, for respondent/cross-appellant.

OPINION

SPRINGER, Justice:

This is an appeal by a divorced wife who claims that the trial court abused its discretion in awarding her only $500.00 per month alimony under the following circumstances:

(a) a marriage of thirty-five years;

(b) a marriage during which, by agreement of the parties, the wife did not pursue her own employment or career so that she could remain at home as a homemaker and raise the parties' six children;

(c) a marriage during which the husband pursued his own professional advancement, earned a Ph.D. and achieved his present academic position as chairman of the Computer Science and Electrical Engineering Department at the University of Nevada-Las Vegas;

(d) a marriage in which the marital property, consisting of a small ($10,000.00) equity in a house, household furniture and personal property, a 1982 Buick, a 1984 Plymouth, and a retirement fund, has been equitably divided; ¹

(e) a husband who earns $5,600.00 per month and who, by his affidavit, has living expenses of less than $2,000.00 per month;

(f) a wife who is fifty-seven years old, who has no professional skills, who is unemployed and who never has been able to earn any more than $600.00 per month; and

(g) a wife who, after the divorce, has no appreciable assets other than a 1982 Buick, a mortgaged house in Detroit and a future interest in half of her husband's University of Michigan retirement benefits. (The record does not disclose the amount or conditions of the wife's share in these future benefits. She receives nothing at the present time.)

Under these circumstances we must agree with Loretta Heim: the trial court did abuse its discretion in making this award. The sum of $500.00 per month until death or remarriage is not, as a matter of law, "just and equitable" under the circumstances of this case. "Before the appellate court will interfere with the trial judge's disposition of the community property of the parties or an alimony award, it must appear on the entire record in the case that the discretion of the trial judge has been abused." Shane v. Shane, 84 Nev. 20, 22, 435 P.2d 753, 755 (1968). Because the trial court has abused its discretion in this regard, we reverse and remand for new trial on the issue of alimony.

Alimony is wholly a creature of statute. Freeman v. Freeman, 79 Nev. 33, 35, 378 P.2d 264, 265 (1963). In 1861 the Legislative Assembly of the Territory of Nevada authorized the court to award support for a wife "as shall be deemed just and equitable." Laws of the Territory of Nevada ch. 33, sec. 27, at 99 (1861) (our emphasis). In 1939 the state legislature passed an amendment to the territorial act which stated that in "granting a divorce, the court may award such alimony to the wife and shall make such disposition of the community and separate property of the parties as shall appear just and equitable." 1939 Nev.Stats. ch. 25, at 18 (our emphasis).

The present day statute, NRS 125.150(1), ² contains the same "just and equitable" language. Although it could be argued syntactically that the quoted language relates only to property division, we interpret the statute to mean that, since 1861, alimony awards must in this jurisdiction be "just and equitable." ³ Furthermore, as required by NRS 125.150(1), the award must be fairly related to the "respective merits" of the parties and to the "condition in which they will be left by the divorce."

The legislative standard was accepted and properly restated in Krick v. Krick, 76 Nev. 52, 59, 348 P.2d 752, 755 (1960). It was correctly noted in Krick that NRS 125.150(1) authorizes the trial court to award such alimony (and property) "as shall appear equitable and just, having regard to the respective merits of the parties and to the condition in which they will be left by such divorce."

Although the rule to be applied in making alimony awards is properly stated in Krick, the court in Krick had no need to apply the rule to any specific decision regarding alimony; therefore, it is not instructive on the question before us now. Since Krick, our cases seem to have ignored the legislative standard and, instead, adopted a formulary approach in which we have simply listed "matters to be considered" by the trial court in judging these matters. An example of this matters-to-be-considered approach can be found in Johnson v. Steel, Inc., 94 Nev. 483, 486, 581 P.2d 860, 862 (1978), where we failed to mention the general statutory principles and instead focused on the "limits to their [the trial courts'] discretion," which we defined in terms of the trial courts' being required to follow certain "guidelines" or "matters to be considered," which were borrowed from a previous case, Buchanan v. Buchanan, 90 Nev. 209, 523 P.2d 1 (1974). The so-called "Buchanan guidelines" 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, strangely, "the contribution of each to any property held by them as tenants by the entirety" (a form of tenancy unknown to the jurisprudence of this state). Buchanan, 90 Nev. at 215, 523 P.2d at 5.

It would be very easy for readers of the Johnson- Buchanan type of case to conclude that an alimony or property disposition decision can be properly made by courts within the "limits of their discretion" simply by steadfastly considering the items on the Johnson- Buchanan check list. But the statute requires more than this. The judge must, in making a decision in alimony and property matters, 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.

Applying the stated legislative standard to this case we readily determine that $500.00 per month does not "appear equitable and just, having regard to the respective merits of the parties and to the condition in which they will be left by such divorce." Krick, 76 Nev. at 59, 348 P.2d at 755.

We begin our analysis by looking at the condition in which these parties are to be left by the divorce or, more particularly, at their relative financial worth and earning capacities.

The husband earns $5,600.00 per month and is required by the alimony decree to pay something less than nine percent of this to his wife of thirty-five years. He may deduct the $500.00 from his income tax; she must pay income tax on the $500.00. After paying alimony and living expenses he appears to have $3,000.00 left over each month.

The wife is unemployed, but even if we were to assume that she will soon start to earn the $600.00 per month that she was able to earn from time to time in the past, she will have an income of only $1,100.00 per month, alimony included. Without a job she is close to the recognized poverty level. ⁴ Even if her income amounts to $1,100.00 per month, she will have an income of one-fifth that of her husband.

In sum, the financial condition in which the parties are left is this: the husband, after paying tax-deductible alimony, will have $3,000.00 per month income after living expenses, while the wife's financial condition after divorce appears almost certain to result in deprivation, poverty and social degradation.

Analyzing "the respective merits of the parties" mentioned in the statute is difficult in this case as we know little or nothing about the actions or behavior of the parties. "Merits" may refer to the good marital behavior or to the fault of the parties. ⁵

When examining the "merits" of the parties the courts might look at the parties' good actions or good behavior or lack thereof in determining what either husband or wife justly deserves. Here the record is silent on issues of the good or bad actions of the parties during the marriage, as well as on issues relating to who instigated the dissolution; accordingly, merit in this sense, not having been brought to the attention of the trial court, will not be considered on this appeal. ⁶

Finally, as we must, we look to the overall justice and equity that must inform all alimony and property distribution decrees. As suggested above, what is just and equitable as an alimony award, broadly speaking, can be translated into terms of what is fair and what Loretta deserves under the circumstances of the case. We have said before that parties in divorce actions must be treated fairly. "The trial court's objective is that of fairness, which it achieves by the judge's personal observation of the parties and the evaluation of the circumstances as they come before him in the arena of the trial court." Winn v. Winn, 86 Nev. 18, 20, 467 P.2d 601, 602 (1970). To determine what is fair, just and equitable one has to look not only to the relative financial condition of the parties and to where they will be "left" by the divorce, but also to all of the circumstances of the marriage--its duration, the age and health of the parties, the special agreements and understandings of the parties and the past relations, conduct and status of the parties. In the present case, one can give little consideration to general principles of justice, equity, deserts and fairness without being struck by the enormous disparity in the status and quality of life of the two marital partners that is brought about largely by the "paltry" amount of alimony awarded to her by the trial court. See Orr v. Orr, 458 So.2d 362 (Fla.Dist.Ct.App.1984). It is quite obvious that Dr. Heim leaves the divorce with almost everything and Mrs. Heim with almost nothing. By "everything" we mean...