Maher v. Maher

• Decision Date: 27 May 2004
• Docket Number: No. 03-181,03-181
• Parties: HENRY EARL MAHER, Appellant (Plaintiff), v. MARLENE LOUISE MAHER, n/k/a MARLENE LOUISE LAWSON, Appellee (Defendant).
• Court: Wyoming Supreme Court

2004 WY 62

90 P.3d 739

HENRY EARL MAHER, Appellant (Plaintiff), v. MARLENE LOUISE MAHER, n/k/a MARLENE LOUISE LAWSON, Appellee (Defendant).

No. 03-181

Supreme Court of Wyoming. April Term, A.D. 2004.

May 27, 2004

Representing Appellant: Deborah Ford Mincer of The Mincer Law Firm, Cheyenne, WY.

Representing Appellee: Carol A. Serelson, Cheyenne, WY.

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

LEHMAN, Justice.

[¶1] Appellant Henry Maher (Maher) appeals the denial of his petition to terminate the alimony payments he is required to make to his former wife, appellee Marlene Lawson (Lawson). The alimony payments are required pursuant to an agreement entered into between the parties and incorporated into their divorce decree. Maher sought to terminate the alimony payments upon his former wife's remarriage. We affirm.

ISSUES

[¶2] Maher sets forth the following issues:

I. Whether the trial judge erred under Swetich v. [Smith, 802 P.2d 869 (Wyo. 1990),] when the recipient of alimony, upon her remarriage, was required to bear no burden of proof as to a continuing need for alimony?

II. Whether the trial judge erred when he decided a settlement agreement required that he deny a motion to terminate alimony?

III. In the alternative, whether the trial judge abused his discretion in ruling that the motion to terminate alimony should be denied?

Lawson phrases the issues on appeal as:

A. Whether the trial court properly required Appellant to prove a substantial change of circumstances to justify a modification or termination of alimony?

B. Whether the trial court properly weighed the written agreement of the parties in denying the motion to terminate alimony?

C. Whether the trial court's denial of Appellant's motion to terminate alimony is warranted by the facts of this case and is not an abuse of discretion?

D. Whether this Court will certify that there is no reasonable cause for this appeal and award sanctions against Appellant?

FACTS

[¶3] On May 7, 1998, after almost twenty-five years of marriage, Maher filed for divorce from Lawson. The parties entered into a Property Settlement Agreement prepared by Maher's attorney on May 22, 1998. The agreement provided, in applicable part:

9. The Husband [Maher] shall pay spousal maintenance/alimony to the Wife [Lawson] in the amount of $1,739.00 per month, beginning on the fifteenth (15th) day of June, 1998, and continuing until September of the year 2008 when the parties' current mortgage is paid off.

At the time the parties' mortgage is paid in full, Husband's spousal maintenance/alimony payments shall be reduced by Nine Hundred Nineteen Dollars and Ninety Two Cents ($919.02), which equals the amount of the parties' current principal and interest mortgage payment. Said amount shall then be paid until September of the year of 2012.

At such time as child support ceases, Husband's spousal maintenance/alimony payment shall increase by the amount of child support, $661.00, in the month after the last child support payment was paid.

In the event that Wife obtains better paying employment, or receives a pay increase of any sort, Husband's alimony payment will be reduced by fifty percent (50%) of Wife's pay increase. In the event Husband receives pay raises, his spousal maintenance/alimony payment shall be increased to, and calculated at, fifty percent (50%) of his net monthly income.

In the event Husband serves on Active Duty for the United States Marine Corps Reserve, he shall pay fifty percent (50%) of any net amount earned, for that service, over and above the net amount earned for his civilian employment, to Wife as additional spousal maintenance/alimony. Any travel expenses and perdiem [sic] payments associated with said Active Duty will be retained exclusively by the Husband.

The agreement also included an acknowledgment that the parties had the opportunity to retain separate counsel prior to execution of the agreement. Although the parties considered including a clause within the agreement that would end alimony upon remarriage, the parties could not agree on that clause and it was left out of the agreement. Further, Maher signed and filed a statement under oath indicating that the form of decree of divorce was fair and equitable to both parties. The agreement was then filed with the district court, and the district court entered a decree of divorce on July 7, 1998, incorporating the agreement.

[¶4] Maher remarried in November 1999, and Lawson remarried in March 2000. On July 18, 2000, Maher filed his Petition for Termination of Alimony, which was initially heard before a district court commissioner. Upon the recommendation of the district court commissioner, the district court formally denied Maher's petition. Thereafter, the district court granted Maher's Motion for Relief from Judgment filed pursuant to W.R.C.P. 60(b).¹

[¶5] A trial was then held before the district court on Maher's original Petition for Termination of Alimony. Ultimately, the district court denied the petition on June 9, 2003, finding that Maher had failed to show a material and substantial change of circumstances.

STANDARD OF REVIEW

[¶6] A trial court's conclusions of law are not binding on this court and are reviewed de novo. Pagel v. Franscell, 2002 WY 169, ¶7, 57 P.3d 1226,

¶7 (Wyo. 2002); Maycock v. Maycock, 2001 WY 103, ¶12, 33 P.3d 1114, ¶11 (Wyo. 2001). The standard we apply in reviewing cases asserting an abuse of discretion by the trial court is whether the trial court reasonably could have concluded as it did. Ready v. Ready, 2003 WY 121, ¶11, 76 P.3d 836, ¶11 (Wyo. 2003); Rude v. State, 851 P.2d 20, 23 (Wyo. 1993); Parry v. Parry, 766 P.2d 1168, 1171 (Wyo. 1989).

DISCUSSION

Questions of Law

[¶7] In his first two issues on appeal Maher, in essence, claims that the district court erred as a matter of law when it denied his petition to terminate alimony. According to Maher, the case of Swetich v. Smith, 802 P.2d 869 (Wyo. 1990), citing the cases of Marquardt v. Marquardt by Rempfer, 396 N.W.2d 753 (S.D. 1986) and In re Marriage of Shima, 360 N.W.2d 827 (Iowa 1985), stands for the proposition that upon the filing of a motion to terminate alimony based on remarriage, the spouse receiving alimony has the burden of showing that extraordinary circumstances exist which justify the payment of continued alimony. We do not agree.

[¶8] While it is true that the Marquardt and In re Marriage of Shima cases may support the argument espoused by Maher, this court cited those cases only as authority showing that remarriage could be considered a sufficient change of circumstances to terminate alimony, but that it did not automatically terminate alimony payments without amendatory court action. As stated in Swetich, at 870-71:

Daniel asks that we construe the agreement to provide for automatic termination of alimony upon remarriage in the absence of any agreed termination provision in the agreement. His basic argument is that, traditionally, alimony ends upon remarriage as a matter of law. Daniel cites several cases which tend to support that proposition. Only recently, we indicated "[a]limony payments terminate on the death of either party or on the remarriage of the payee." Sellers v. Sellers, 775 P.2d 1029, 1032 (Wyo. 1989) (accord Warren v. Warren, 361 P.2d 525 (Wyo. 1961)). There was also language in Neagle v. Neagle, 481 P.2d 661, 663 (Wyo. 1971) (Neagle I), which indicates "alimony payments . . . cease upon the remarriage or death of [the payee]."

While Daniel argues with some force for that proposition, another factor must be considered that the argument advanced and the cases cited by Daniel do not accommodate. Daniel's argument does not weigh the continuing jurisdiction of the district court to modify decrees, Sellers, 775 P.2d 1029, and the cited cases do not involve decree incorporated term payment separation agreements and do not provide any express termination on remarriage proviso.

In Hendrickson v. Hendrickson, 583 P.2d 1265, 1267 (Wyo. 1978), we said "an award always remains open; and upon application, where conditions and circumstances have changed, the trial court can provide relief and modify the allowance." Necessarily, modification of the award for the payment of alimony is to be made by the district judge, not by a unilateral decision by the payor.

This approach is similar to that used in other jurisdictions. In Marquardt v. Marquardt by Rempfer, 396 N.W.2d 753 (S.D. 1986), a separation agreement incorporated by reference into the divorce decree provided for alimony payments but did not provide for the termination of alimony upon remarriage of the payee. The ex-husband moved to have alimony support terminated after his ex-wife remarried. In that case, the court held that remarriage is prima facie evidence that alimony should be terminated and shifts to the payee the burden of showing extraordinary circumstances which might require continued payments of alimony. The Supreme Court of South Dakota relied upon In re Marriage of Shima, 360 N.W.2d 827 (Iowa 1985) for its rationale.

In In re Marriage of Shima, the Iowa Supreme Court indicated that while alimony did not terminate automatically upon remarriage, the burden was upon the payee to demonstrate extraordinary circumstances which could justify continued alimony payments. The Supreme Court of Iowa had relied upon Wolter v. Wolter, 183 Neb. 160, 158 N.W.2d 616, 619 (1968) for its rationale. In Wolter, the Nebraska Supreme Court held that remarriage does not automatically terminate a right to alimony but makes a prima facie case which can only be overcome by a showing by the payee of extraordinary circumstances justifying a continuation of alimony.

There is also a substantial body of cases and accommodating statutes determining that termination of alimony is automatic upon remarriage. See Voyles v. Voyles, 644 P.2d 847 (Alaska 1982); Myers v. Myers, 62 Utah 90, 218 P. 123 (1923); Ala.Code § 30-2-55 (1989);

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