Lincoln v. Lincoln

• Decision Date: 06 October 1992
• Docket Number: No. 77762,No. 3,77762,3
• Parties: 1992 OK CIV APP 124 Cora Sudell LINCOLN, Appellee, v. Ross William LINCOLN, Appellant. Court of Appeals of Oklahoma, Division
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 41

840 P.2d 41

1992 OK CIV APP 124

Cora Sudell LINCOLN, Appellee, v. Ross William LINCOLN, Appellant.

No. 77762.

Released for Publication by Order of the Court of Appeals of Oklahoma, Division No. 3.

Court of Appeals of Oklahoma Division No. 3.

Oct. 6, 1992.

Appeal from the District Court of Creek County; April Sellers White, Judge.

AFFIRMED AND REMANDED.

Thomas Filbeck, Sapulpa, for appellee.

P. Thomas Thornbrugh, Tulsa, for appellant.

OPINION

HANSEN, Vice-Chief Judge:

Appellant, Ross William Lincoln, (Husband) seeks review of a decree of divorce granting Appellee, Cora Sudell Lincoln, (Wife) a divorce from Husband. The decree ordered Husband to pay $617.81 per month in child support for the parties' two children, and awarded Wife judgment against Husband for $36,000.00 support alimony, payable for 60 months.

In his first proposition of error, Husband argues the trial court erred in computing his child support obligation. He argues 43 O.S.1991, § 118(2) requires the trial court to consider the $600.00 alimony payment he is ordered to pay Wife in calculating the parties' proportionate share of child support.

43 O.S.1991, § 118 establishes child support guidelines for trial courts to follow in determining child support payments. That section requires all child support to be computed as a percentage of the combined gross income of both parents. Subdivision 2 of this section defines gross income as "income from any source, except as excluded in this act, and includes but is not limited to income from salaries, wages, commissions, bonuses, dividends, severance pay, pensions, rent, interest income, trust income, annuities, social security benefits, workers' compensation benefits, unemployment insurance benefits, disability insurance benefits, gifts and prizes." This paragraph further excludes from gross income "actual child support received for children not before the court" and benefits received from certain public assistance programs. Subdivision 5 of Section 118 provides that the amount of any pre-existing court order for child support for children not before the court or for support alimony arising in a prior case shall be deducted from gross income to the extent payment is actually made under such order. The statute makes no reference to support alimony awarded in the same case.

There are no reported decisions in this State addressing this issue in the context of the statute. The statute does provide that gross income shall include "income from any source" and does not specifically exclude alimony payments contemporaneously ordered. Thus, the definition of gross income in Section 118 can be interpreted as requiring contemporaneously-ordered alimony to be included in Wife's gross income. The next question is whether the statute authorizes the deduction of contemporaneously-ordered alimony from Husband's gross income prior to calculating child support.

Section 118 establishes guidelines which trial courts are directed to follow when computing child support. These guidelines provide that support is to be calculated based on both parties' gross income, as adjusted by the items specified in Section 118. Section 118 clearly provides support alimony arising in a prior case shall be deducted from gross income to the extent such payments are made. The statute is silent regarding alimony arising in the case before the trial court.

A statute should be construed according to the fair import of its words taken in their usual sense, in connection with the context and with reference to the purpose of the provision. Jordan v. State, 763 P.2d 130 (Okla.Crim.App.1988). Statutes must be read in a manner which effectuates rather than frustrates their purpose. In the Matter of Estate of Shunkamolah, 800 P.2d 1079 (Okla.App.1990). To aid in interpreting a statute, this Court may utilize the maxim "expressio unius est exclusio alterius". This is a rule of construction that excludes one thing by implication in a statute which mentions another. Hardesty v. Andro Corporation-Webster Division, 555 P.2d 1030 (Okla.1976). The statute specifically provides alimony arising in another case may be deducted from gross income. By expressly allowing the deduction of prior alimony payments only, we can presume that by excluding contemporaneously-ordered alimony from this provision, the Legislature intended that contemporaneously-ordered alimony should not be deducted from gross income.

However, if, following a strict construction of the statute, we would require Wife to include contemporaneous alimony as gross income but not deduct the alimony payment from Husband's gross income, we would arrive at a fictitious combined income which exceeded the actual income by $600.00. This would increase Wife's proportionate part of the support and increase the level of support for the children. ¹ In light of the purpose of Section 118 to provide child support based on parents' income and relative abilities to pay, we cannot presume that the Legislature intended that child support be calculated on an artificially high combined income.

The only logical way to calculate the parties' respective percentages of child support if alimony is included in Wife's gross income is to adjust Husband's gross income by the same amount. The statute does not authorize adjusting gross income for contemporaneous payment of support alimony. However, neither does the statute expressly exclude contemporaneous support alimony from a party's income. This leaves this court in the untenable position of being unable to conform our decision to the exact terms of the statute as written.

The Supreme Court of Montana when faced with a similar statute and a similar issue, determined Montana's child support guidelines, which require support to be calculated based on the parties' net income, did not authorize the court to include the wife's alimony as income to her and to deduct it from the husband's income. In re Marriage of Roullier, 229 Mont. 348, 746 P.2d 1081 (1987). The Montana court considered the fact that most support alimony payments terminate after a specified time, which would require an adjustment to the percentages of child support paid by the parent. The alimony award to wife will terminate in 60 months. Husband has not addressed whether the trial court is required or authorized by statute to compute child support based on the parties' income at the time of trial and again when any alimony support payments terminate.

Similarly, the Minnesota Court of Appeals decided its statute governing child support computation, based on the parents' net income, did not authorize the trial court to subtract the amount of maintenance from the husband's net income before it applied the guidelines to calculate child support. Driscoll v. Driscoll, 414 N.W.2d 441 (Minn.App.1987). The Minnesota statute is similar to the Oklahoma statute in that both are based on each parent's income and both provide that only maintenance "currently being paid" or "in a prior case" may be deducted from the calculation of income. Minn.Stat. Section 518.551, Subd. 5 (1991).

Accordingly, we hold child support obligations, based on the Oklahoma Child Support Guidelines as presently written, must be calculated without consideration of any contemporaneous support alimony award. The trial court did not err by not including Wife's contemporaneously-ordered alimony payment in her gross income before computing child support responsibilities.

Husband next maintains the trial court's determination that his gross monthly income is $4,150.22, is not supported by the evidence. The evidence indicates Husband received gross wages from his employment at Red Wing Products of $27,497.00 per year. There was also evidence that Husband was self-employed and received additional income from Ross Lincoln Enterprises (R.L.E.). Husband testified R.L.E. had accounts receivable in 1990 totalling $34,560.95 and invoices R.L.E. owed or paid totalling $24,947.31. Husband also had income attributed to interest. After reviewing the evidence, we cannot say the trial court's finding that Husband's gross monthly income from all sources equalled $4,150.22 is against the clear weight of the evidence. Although 43 O.S.1991, Section 118(3) requires the trial court to carefully review income and expenses from self-employment to determine an appropriate level of gross income available to the parent to satisfy a child support obligation, the trial court's failure to make a specific finding regarding husband's monthly income from R.L.E. does not constitute reversible error. Archer v. Archer, 813 P.2d 1059 (Okla.App.1991). The trial transcript indicates the trial court carefully considered Husband's earnings from self-employment.

Husband also takes issue with the trial court's order granting Wife $36,000.00 in support alimony, payable in $600.00 payments for 60 months. Husband maintains the award is excessive, that the trial court failed to make a specific finding of need by Wife, and that he should have received credit against the alimony ordered for the temporary support he paid under the temporary order.

A divorce is an action of equitable cognizance and the trial court is vested with wide discretion in awarding alimony. Wood v. Wood, 793 P.2d 1372 (Okla.App.1990). This Court will not disturb the trial court's determination unless the record shows an abuse...