Lebeck v. Lebeck

• Decision Date: 29 July 1994
• Docket Number: No. 14889,14889
• Parties: Albert O. LEBECK, Jr., Petitioner-Appellee, v. Bonnie A. LEBECK, Respondent-Appellant.
• Court: Court of Appeals of New Mexico

Page 727

881 P.2d 727

118 N.M. 367

Albert O. LEBECK, Jr., Petitioner-Appellee, v. Bonnie A. LEBECK, Respondent-Appellant.

No. 14889.

Court of Appeals of New Mexico.

July 29, 1994.

Steven L. Tucker, Tucker Law Firm, P.C., Santa Fe, for petitioner-appellee.

Michael L. Danoff, Kim E. Kaufman, Albuquerque, for respondent-appellant.

OPINION

MINZNER, Chief Judge.

Wife appeals from a final judgment granting a divorce that upholds the validity of a prenuptial agreement and denies Wife an award of alimony or community property. She claims error in (1) the denial of spousal support; (2) the upholding of the prenuptial agreement; (3) the denial of an award of community property; and (4) the award of attorney fees. We affirm.

FACTS

Bonnie (Wife) and Albert (Husband) Lebeck had been married for eight years at the time of their divorce. Prior to marrying, the couple lived together for about three years. When the couple began living together in May 1978, Husband was a fifty-three-year-old lawyer who did not practice law full-time, but whose main income was from inherited investments. Husband had four children from a previous marriage. Wife was thirty-three years old, had a bachelor of arts degree in journalism, and had worked for the Gallup Independent as city editor for seven years. She also had previously been married, and Husband served as Wife's attorney in her divorce from her first husband. In 1979, after living together for a year, the couple had a child.

About two and a half years later, Husband and Wife decided to get married. Some days prior to the wedding, Husband asked Wife if she would sign a prenuptial agreement. Husband prepared the agreement, to which he attached a list of his separate property assets and their value. He asked Wife to review the agreement with an attorney of her choice and have the attorney send Husband a letter verifying that they had gone over the agreement and that Wife understood it. She did so and signed the agreement. They married and Wife continued to write part-time, devoting the majority of her time to being a mother and homemaker. Husband continued to practice law part-time, receive director fees from both a family business and a bank, and receive various commissions for real estate transactions. The couple's living expenses during the marriage exceeded Husband's income from the law practice, director fees, and commissions. As a result, Husband spent a substantial amount of his separate income on the marital community.

In 1989, Husband filed for divorce. Wife took a job with the Arizona Bar Association, and she and the couple's daughter moved to Scottsdale. The issues of child custody, visitation, and support were resolved by the parties and are not issues on appeal. The parties stipulated that Wife needed interim spousal support immediately following the filing of the action. During the three years that the action was pending, Wife worked full-time, and at the time of trial she had a monthly take-home income of $1,080.

DISCUSSION

Wife initially argues that the trial court's findings regarding spousal support do not reflect consideration of the appropriate factors. We disagree. New Mexico cases indicate that the threshold question for the award of spousal support is need. Hall v. Hall, 114 N.M. 378, 385, 838 P.2d 995, 1002 (Ct.App.), cert. denied, 114 N.M. 314, 838 P.2d 468 (1992); Foutz v. Foutz, 110 N.M. 642, 643, 798 P.2d 592, 593 (Ct.App.1990).

Wife requested a finding that she needed and should receive spousal support. However, the trial court made an express finding that Wife had needed the interim spousal support provided by Husband for three years, but that spousal support was inappropriate following the divorce. Substantial evidence supports this finding. Wife was forty-six years old, had a degree in journalism and a history of employment in that field, and was employed and receiving take-home pay of $1,080 per month at the time the trial court made its findings. In addition to her income, Wife receives $1,423.19 per month in child support from Husband.

Wife argues that she submitted numerous requested findings of fact regarding the parties' finances and that the trial court should have considered all the factors she raised in determining whether there was a need for spousal support. However, having determined that Wife had sufficient funds to meet her needs and therefore did not require spousal support, the trial court did not need to consider additional factors. See Foutz, 110 N.M. at 643, 798 P.2d at 593. The additional factors would have been relevant in calculating the amount of spousal support to be awarded if the trial court had determined that there was a need for continued support. See Lewis v. Lewis, 106 N.M. 105, 115-16, 739 P.2d 974, 984-85 (Ct.App.1987). Since the trial court determined that there was no need for spousal support, it was not required to consider additional factors.

Wife also asserts that the record indicates the trial court considered inappropriate factors, reveals bias, and therefore supports a conclusion that the court abused its discretion. Prior to filing findings and conclusions and a final decree, the trial court filed a minute entry, a five and a half page document summarizing its conclusions on each of the major issues. In discussing alimony, the court made the statement that "Mrs. Lebeck is an intelligent and articulate college-educated woman with additional attributes of being attractive, and on observation from several court appearances, possessed of exceptional good taste in attire." Wife asserts that the trial court is implying that her chance of securing another husband is a factor it considered in determining whether to award spousal support. Husband answers that the comments were directed toward assessing Wife's employability. Husband also argues that even if the comments were erroneous, the judgment should still be affirmed because the decision on spousal support was based on other proper factors.

While this case was pending on appeal, our Supreme Court approved guidelines that are relevant to the facts of this case. In conjunction with the New Mexico State Bar Standing Committee on Women and the Legal Profession, the Supreme Court recently published a handbook discussing gender bias. Handbook on Gender Equality in the Courts: A Guide for Court Conduct in All New Mexico Courts (1994). The Handbook acknowledges that gender bias may manifest itself unintentionally and may arise in common forms of speech, but it also recognizes the judiciary's obligation to make special efforts toward a bias-free environment. Id. at 3-5. The Handbook specifically lists as conduct to be avoided: "Comment on the physical appearance of others." Id. at 5. Had this clear guideline been published earlier, undoubtedly the trial court would have framed the minute order differently. The Handbook offers suggestions that will be useful in avoiding unintentional, as well as intentional, manifestations of gender bias in the future. We believe that the trial court should have drafted the minute order more carefully, even though it was prepared prior to the publication of the Handbook. Nevertheless, we agree with Husband that the trial court listed sufficient proper factors to support its decision regarding spousal support, and that in context the remarks are part of a paragraph similar to the discussion of employability contained in Blake v. Blake, 102 N.M. 354, 364, 695 P.2d 838, 848 (Ct.App.1985).

Erroneous findings of fact unnecessary to support the judgment of the court are not grounds for reversal. Specter v. Specter, 85 N.M. 112, 114, 509 P.2d 879, 881 (1973). Further, a trial court's verbal comments can clarify an ambiguous finding, but they do not provide a basis for reversal. Ledbetter v. Webb, 103 N.M. 597, 604, 711 P.2d 874, 891 (1985). Whether we view the minute entry as containing an unnecessary finding or as a verbal remark that should not affect valid findings, its presence in this record does not establish reversible error. The reference to Wife's appearance does not by itself establish that the trial court considered inappropriate factors, and thus does not support a conclusion that the trial court abused its discretion in denying spousal support. Compare Blake, 102 N.M. at 364, 695 P.2d at 848 (no abuse of discretion for trial court to consider such factors as wife's education, personality, and entree to prominent social circles in determining alimony) with Hertz v. Hertz, 99 N.M. 320, 326, 657 P.2d 1169, 1175 (1983) (judge's findings revealed reliance on inappropriate factors, and record showed spouse seeking alimony was neither in need nor entitled to alimony when appropriate factors considered). We need not decide in this case what additional evidence would have been necessary to establish the basis for a remand. Cf. Salter v. Jameson, 105 N.M. 711, 714, 736 P.2d 989, 992 (Ct.App.) (remand for entry of revised findings that exclude a theory of liability for which there was insufficient evidence), cert. denied, 105 N.M. 720, 737 P.2d 79 (1987).

Wife further argues that at trial Husband's attorney conceded that Wife needed $600 a month in spousal support to meet her expenses. That concession, Wife asserts, precludes Husband from now arguing that spousal support should not be awarded because she relied on that concession for the remainder of the trial.

The first case cited by Wife to support her position concerns a husband being precluded from appealing the award of spousal support when his requested findings and conclusions contained a provision for spousal support. See Cox v. Cox, 108 N.M. 598, 602-03, 775 P.2d 1315, 1319-20 (Ct.App.), cert. denied, 108 N.M. 624, 776 P.2d 846 (1989). Cox is distinguishable. Husband requested findings providing for temporary rather than permanent spousal support and he amended those findings to eliminate any request for support prior to the trial court's final decree.

Wife's...