Lindsay v. Lindsay

• Decision Date: 19 May 1977
• Docket Number: No. 1,CA-CIV,1
• Citation: 115 Ariz. 322,565 P.2d 199
• Parties: Wilma E. LINDSAY, Appellant, v. Walter L. LINDSAY, Appellee. 3204.
• Court: Arizona Court of Appeals

Page 199

565 P.2d 199

115 Ariz. 322

Wilma E. LINDSAY, Appellant, v. Walter L. LINDSAY, Appellee.

No. 1 CA-CIV 3204.

Court of Appeals of Arizona, Division 1, Department A.

May 19, 1977.

Sullivan & Brook, P. C. by James F. Brook, Phoenix, for appellant.

Rihr & Varbel by Duane Varbel, Phoenix, for appellee.

HAIRE, Judge.

This is an appeal from a decree of dissolution. Appellant-wife contends that:

1. The trial judge abused his discretion in failing to award her spousal maintenance for life or until her remarriage, or at the very least for a period substantially in excess of three years, reserving jurisdiction to modify the time period.

2. The trial judge abused his discretion in failing to award the appellant-wife her interest in community funds resulting from the sale of the community's interest in an aircraft which the appellee-husband dissipated subsequent to the commencement of the dissolution action and prior to the trial thereof.

The decree involved in this appeal was entered by the trial court on May 28, 1975. Therefore, the questions raised by appellant are governed by the 1973 revisions to Arizona's marital dissolution statutes. With this in mind, we now consider appellant's first contention.

In the decree, the trial judge found that appellant was entitled to spousal maintenance "for a limited adjustment period". The actual maintenance award, insofar as pertinent to this appeal, was for "the sum of Four Hundred ($400.00) Dollars per month for a period of three (3) years." Appellant argues that under the circumstances presented in this case, the fact that this maintenance award will end automatically in three years and is not subject to modification so as to extend the termination date, constitutes an abuse of discretion. This argument assumes that the award is for a "lump sum" and that prior Arizona case law precluding the modification of lump sum spousal maintenance awards remains applicable to decrees entered subsequent to the 1973 statutory amendments. We are of the opinion that appellant's underlying assumptions are sound. While the present provisions of A.R.S. § 25-319 B ¹ no longer expressly allow the court to grant spousal maintenance in gross or in lump sum payment, it has been held that under the present statute this clearly may be done. Fye v. Zigoures, 114 Ariz. 579, 562 P.2d 1077 (filed January 13, 1977).

Under the pre-1973 statutes, case law had developed which held that awards providing for maintenance to be paid in installments for a specified number of months or years were lump sum awards, and that lump sum awards were not subject to modification even upon a showing of a change in circumstances. This holding was first stated in Cummings v. Lockwood, 84 Ariz. 335, 327 P.2d 1012 (1958), in which the purpose of providing for a gross and unmodifiable amount of alimony was said to be "to define and fix with finality the scope of the rights and obligations of the parties . . . so that ties between them can be completely severed and they can face with certainty the measure of the final adjustment which they will be required to make." (Citing and quoting from Ziegenbein v. Damme, 138 Neb. 320, 292 N.W. 921 (1940)); see also Barnett v. Barnett, 95 Ariz. 226, 388 P.2d 433 (1964); Lloyd v. Lloyd, 23 Ariz.App. 376, 533 P.2d 684 (1975) (decree entered under pre-1973 law); Bennett v. Bennett, 17 Ariz.App. 101, 495 P.2d 871 (1972); Bartholomew v. Superior Court, 4 Ariz.App. 50, 417 P.2d 563 (1966).

Except to the extent that lump sum or gross amount awards for spousal maintenance are now subject to modification (including termination) in the event of death or remarriage, ² it does not appear that the statutory language contained in the amended provisions of A.R.S. § 25-327 governing the modification of post-1973 spousal maintenance decrees warrants an interpretation different from that set forth in Cummings, supra. Having concluded that the maintenance award here involved constitutes a lump sum award not subject to being modified in the exercise of the court's continuing jurisdiction, we now consider the merits of appellant's contention that the trial judge abused his discretion in limiting the maintenance to a three year period, without preserving modification jurisdiction.

At the time of the entry of this decree, the factors to be considered in initially determining whether an award for maintenance should be entered, and in establishing the amount and duration of such an award if entered, were expressed in A.R.S. § 25-319: ³

"25-319. Maintenance; computation factors.

"A. In a proceeding for dissolution of marriage or legal separation, or a proceeding for maintenance following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse, the court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance:

"1. Lacks sufficient property, including property apportioned to him, to provide for his reasonable needs; and

"2. Is unable to support himself through appropriate employment or is the custodian of a child whose age or condition is such that the custodian should not be required to seek employment outside the home.

"B. The maintenance order shall be in such amounts and for such periods of time as the court deems just, without regard to marital misconduct, and after considering all relevant factors, including:

"1. The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently.

"2. The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment.

"3. The standard of living established during the marriage.

"4. The duration of the marriage.

"5. The age and the physical and emotional condition of the spouse seeking maintenance.

"6. The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.

"7. Excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community, joint tenancy and other property held in common."

Although the court did not set forth in its decree findings which included the pre-conditions required by subparagraphs 1 and 2 of subsection A, A.R.S. § 25-319, the evidence clearly would have justified such findings, and no issue has been presented on this appeal relating to such failure. The word " support" as used in § 25-319 A(2) cannot be given an unqualified meaning, but rather must be interpreted in light of the preexisting circumstances of the parties involved. That this is the legislative intent is fortified by a consideration of the provisions of § 25-319 B(3) which require that in setting the amount of the support order, the court must consider "the standard of living established during the marriage". See Casper v. Casper, 510 S.W.2d 253 (Ky.1974), interpreting substantially identical statutory provisions of the Uniform Marriage and Divorce Act. We will therefore proceed to a consideration of whether, applying the factors enumerated in subsection B relating to the amount and duration of the award, the trial judge abused his discretion in entering the limited spousal maintenance award here involved.

The facts show that appellant was 49 years old at the time of the trial on this matter, and had not been employed since 1951, before the birth of the couple's first child. Her only employment had consisted of clerical work in a factory office. She was a high school graduate, and had attended business school for several months in the late 1940's. She testified that she had sought employment since the separation of the parties, and that she was willing to work in almost any capacity, even at less than minimum wages, but that she had been unsuccessful in finding employment. There was no testimony that she was presently involved in any educational or training programs, nor was there any evidence which would indicate that her employability would be increased at the end of three years.

At the time of the dissolution the appellee-husband was employed as a travelling sales executive for a large corporation, with a substantial expense account and late-model automobile provided by his employer. In addition to the expense account, which paid all his expenses when he was travelling (average of two days per week), his gross monthly income was $1,583.34, with deductions, inter alia, for a vested pension and profit-sharing plan. After the dissolution, the appellant-wife was left with no income producing property other than possibly the cash awarded to her. She received one-half of the net proceeds from the sale of the family home, amounting to approximately $5,000, a 1971 Plymouth automobile worth $1,000, cash in checking and savings accounts of $237.27, and cash value in life insurance policies of $513. Despite repeated efforts on her part during the pendency of the dissolution proceedings, she had been unable to obtain employment.

While the discretion vested in the trial court to determine a wife's need for maintenance is broad, it cannot be exercised arbitrarily. Rather, there must be support in the record for the trial judge's determination. O'Connor v. O'Connor, 16 Ariz.App. 599, 494 P.2d 1344 (1972).

Porreca v. Porreca, 8 Ariz.App. 394, 446 P.2d 500 (1968), relied on by the court in O'Connor, supra, presented a situation similar in some respects to that in the case at hand. While Porreca is a pre-1973 decision, the factors which the court considered are consistent with those now set forth in A.R.S. § 25-319 B. In Porreca, the Court of Appeals found an abuse of discretion where the trial court had entered a decree which would absolutely terminate alimony at the end of two years, based upon the premise that the wife should be employed by that time. The court's discussion there is particularly helpful in analyzing the questions presented here:

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