Hendrickson v. Hendrickson, 4890

• Decision Date: 02 August 1978
• Docket Number: No. 4890,4890
• Citation: 583 P.2d 1265
• Parties: John Eric HENDRICKSON, Appellant (Plaintiff below), v. Lena Paulette HENDRICKSON, Appellee (Defendant below).
• Court: Wyoming Supreme Court

Page 1265

583 P.2d 1265

John Eric HENDRICKSON, Appellant (Plaintiff below), v. Lena Paulette HENDRICKSON, Appellee (Defendant below).

No. 4890.

Supreme Court of Wyoming.

Aug. 2, 1978.

Frank J. Jones, Wheatland, signed the brief and appeared in oral argument on behalf of the appellant.

Bruce P. Badley, of Badley, Rasmussen & Shoumaker, Sheridan, signed the brief, and Mr. Badley appeared in oral argument on behalf of the appellee.

Before GUTHRIE, C. J., McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

RAPER, Justice.

The appellant-plaintiff raises in this divorce case on appeal the following issues:

1. Did the trial court err in granting alimony though not put in issue by the pleadings or any testimony at trial?

2. If the trial court did possess power to award alimony, was there sufficient evidence on which to base the award?

3. If alimony was properly awarded, was the award excessive?

We will affirm.

Appellant-plaintiff-husband, age 29, sought a decree of divorce from his appellee-defendant-wife, age 24. The divorce was granted, and the decree provided custody of the couple's child to be with the wife along with child support payments by plaintiff to defendant in the sum of $200.00 per month plus all medical expenses. The trial judge, in addition, divided the property ¹ and awarded alimony payable by plaintiff to defendant in the amount of $300.00 per month for a period of 48 months, a total of $14,400.00. Plaintiff was further required to pay $500.00 attorney's fees for defendant at the rate of $100.00 per month.

The defendant in her answer to plaintiff's complaint made no specific claim to alimony, praying only "for such other and further relief as the court deems just and equitable." During the trial, it was developed during plaintiff's case-in-chief that his income as a welder with the Amax Coal Company was, in 1973, $9,915.31; in 1974, $11,363.76; in 1975, $18,164.66; and in 1976, $25,817.36, upon which an income tax of $4,445.56 was payable. Debts of the marriage appeared to be no factor. At the time of trial, plaintiff's earnings were at the same rate as 1976.

The testimony of plaintiff further revealed that pending trial plaintiff had initially and voluntarily given to the wife for her support and that of their child, $700.00 per month, reducing those payments as time went on in $100.00 increments to $400.00 per month at the time of the divorce trial. An income tax refund for 1976, in the sum of $748.00, was divided equally between them. After their separation, plaintiff bought a trailer house with a payment of $200.00 per month and space rental of $100.00 per month in which to live between January and July, 1977, and contributed to his widowed mother $2,700.00 to assist in her support. During his testimony, plaintiff himself suggested child support of 15% Of his gross income, or about $300.00 per month; he made no suggestion as to alimony.

The transcript of testimony discloses only that the wife was employed at the time of trial, but no type of work or salary is shown. The record is barren as to her skills or particular needs. There was no attempt made by trial counsel on either side of the case to develop evidence to show defendant's expenses for housing, subsistence or any other of her costs of living, either then existing or projected.

Plaintiff's gross income would be $21,371.80 after income taxes. While we think there would be other deductions, perhaps for union dues, health insurance, life insurance, etc., we do not know what. The record discloses him to have only one expense, $300.00 per month for a trailer and trailer space. There must be other expenses, such as for subsistence, transportation to and from work, clothing and other costs of living which as a matter of common knowledge must exist, but we cannot speculate what they might be.

We are satisfied that under pertinent law and precedent of this court, alimony may be allowed by the trial judge, section 20-2-114, W.S.1977, providing:

"In granting a divorce, the court shall make such disposition of the property of the parties as appears just and equitable, having regard for the respective merits of the parties and the condition in which they will be left by the divorce, the party through whom the property was acquired, and the burdens imposed upon the property for the benefit of either party and children. The court may decree to the wife reasonable alimony out of the estate of the other having regard for his ability and may order so much of his real estate or the rents and profits thereof as is necessary to be assigned and set out to either party for life, or may decree a specific sum be paid by him." ² (Emphasis added.)

The legislature has by this section made the award of support and maintenance for a divorced wife incidental to the granting of a divorce and no pleading is necessary to support such an award. Martens v. Martens, Wyo.1961, 364 P.2d 995. See also Closson v. Closson, 1923, 30 Wyo. 1, 215 P. 485, 29 A.L.R. 1371, wherein this court spoke approvingly of precedent cited which stated that alimony may be granted, even where not requested, the statute being notice and warning to a husband that the matter will be naturally and normally considered and allowed by the court, if proper, even though not raised in the wife's answer. We so hold in this case.

Nor can we say that the testimony failed to raise the question. The husband's testimony dealt in great detail as to his property and income. The plaintiff complains that there is no evidence of the wife's income and her needs but we note that he, through counsel, failed to examine his wife in that regard and passed up the opportunity for bringing any further facts before the trial judge for his consideration. We observe that the statute is framed in language that relates to the "ability" of the husband and says nothing about the ability of the wife to support herself in whole or in part. Nor did the plaintiff ever offer any evidence to the court which would indicate an inability on his part to pay the amount awarded. Courts cannot supply evidence. Reitveld v. Northern Wyoming Community College District, Wyo.1959, 344 P.2d 986. The controlling element in the award of alimony is always the ability of the husband to pay, though other matters may be considered. Lonabaugh v. Lonabaugh, 1933, 46 Wyo. 23, 22 P.2d 199. We hold that there was sufficient evidence before the court upon which to base an award of alimony.

With the evidence before it, we cannot see that the trial court's award was excessive. This court has many times had before it the question of the award of alimony to the wife and its amount. The trial court judge is privileged to make an award of alimony to the wife and it is largely within his discretion. Biggerstaff v. Biggerstaff, Wyo.1968, 443 P.2d 524. The decision of the trial court should not be disturbed, except on clear grounds, because that court is usually in a better position than the appellate court to judge the respective needs and merits of the parties. Young v. Young, Wyo.1970,472 P.2d 784; Ramsey v. Ramsey, 1956, 76 Wyo. 188, 301 P.2d 377. A further reason for allowing the trial judge extensive latitude in the allowance of alimony and not disturbing the same unless obviously excessive, erroneous, or unjust, is that such an award always remains open; and upon application, where conditions and circumstances have changed, the trial court can provide relief and modify the allowance. Heltsley v. Heltsley, Ky.1951, 242 S.W.2d 973; Cawley v. Cawley, 1921, 59 Utah 80, 202 P. 10. It is so specifically provided by statute in this state. Section 20-2-116, W.S.1977. ³

The evidence discloses that the wife was not employed during the course of their marriage. They were married on February 9, 1973, at which time she would have been about 20 years of age. There is no evidence that she has any special skills or qualifications for any particular employment nor any estate of her own, wealth or separate income of any sort. The child of the parties at the time of the divorce was only about three years of age and that could reasonably be expected to affect the defendant's ability to earn. Until the divorced wife gains employment experience, her earning capacity is indefinite. A period of transition of four years, during which she would receive alimony assistance, does not appear unreasonable and was within the court's discretion upon the basis of the evidence before it. We can see no clear grounds for upsetting the allowance of alimony. The burden rested upon plaintiff to establish that the wife was capable of taking care of herself, in whole or in part. A failure of proof by a party upon whom the burden of proof rests must accrue to the benefit of the party who negatives the issue. Pullman Company v. Finley, 1912, 20 Wyo. 456, 125 P. 380; West's Digest System, Evidence, Key No. 98. When no witness is called or evidence produced on a point, it is assumed such testimony or evidence would be adverse. Benedict v. Citizens' Nat. Bank of Casper, 1932, 44 Wyo. 466, 13 P.2d 573, 574; Hildebrand v. C. B. & Q. R. R., 1932, 45 Wyo. 175, 17 P.2d 651.

Though we have affirmed the district court in this case, we wish to express some dissatisfaction with the fashion in which the case was tried. ⁴ In the absence of any other evidence, a wife who wishes to have alimony awarded should present and by proper trial methods bring out evidence relative to the husband's ability to pay alimony. The evidence on the issue in this record is sketchy, and for that reason not as satisfactory as we would prefer, though marginally sufficient. On the basis of what this court has said previously in Young v. Young, supra, and Biggerstaff v. Biggerstaff, supra, the district court was not without information as to the husband's ability to pay and the needs of the wife. There was as much information here as in Young v. Young, supra.

In divorce cases, counsel perform their duties to their clients and the...