Marriage of Nicholson, In re

• Decision Date: 14 March 1977
• Docket Number: No. 4124--I,4124--I
• Citation: 561 P.2d 1116,17 Wn.App. 110
• Parties: In re the MARRIAGE OF John NICHOLSON, Appellant, and Gwendoline P. Nicholson, Respondent.
• Court: Washington Court of Appeals

Page 110

17 Wn.App. 110

561 P.2d 1116

In re the MARRIAGE OF John NICHOLSON, Appellant and Gwendoline P. Nicholson, Respondent.

No. 4124--I.

Court of Appeals of Washington, Division 1.

March 14, 1977.

[561 P.2d 1117] John R. Simmons, Seattle, for appellant.

Jonson & Jonson, Bernice Jonson, Seattle, for respondent.

ANDERSEN, Judge.

FACTS OF CASE

John Nicholson appeals from an award of property, alimony, child support and attorneys' fees in a decree of dissolution.

This dissolution action was commenced by Mr. Nicholson. The decree was entered following a 2-day trial in May of 1975.

The issues presented require that some factual detail be set out.

The parties were married in January of 1947 and three children were born of the marriage. At the time of trial, two of the children were emancipated and one child, a 10-year-old daughter, was living with her mother and attending a private church school. The health of both parties was good. ¹

The husband, aged 50, is a machinist by trade. For many years he has been steadily employed as the plant superintendent for a woodworking firm. His gross salary was $1,465 a month at the time of trial and he netted a take-home pay of about $1,116. In addition, his employer provided him with an automobile and insurance thereon together with medical insurance.

The wife was 49 years of age. She was employed as a teacher's aide with a net take-home pay of about $187 per month. Her job was being terminated at the end of the school year, however, due to failure of a school levy to pass.

She had worked for a few relatively brief intervals during the marriage but for the most part stayed at home to raise the children, that being her husband's wish. She testified that her husband[561 P.2d 1118] did not approve of her working. The jobs she had were essentially unskilled.

The parties informally divided monies between themselves in June of 1972 wherein the wife received cash assets of $11,066.43 and the husband, $10,541.01, which the decree confirmed.

The wife was awarded property valued at approximately $37,000 and the husband was awarded property valued at approximately $17,000 together with the parties' shares of stock in the closed corporation for which he worked. The parties were each given a half interest in a pending alienation of affections action brought by the wife against the woman with whom the husband was allegedly living. ²

The husband was ordered to pay the wife $400 a month as alimony or maintenance for a period of 10 years or until she remarries or dies.

Custody of the minor daughter was awarded to the wife with visitation privileges accorded to the husband, and the husband was ordered to pay $175 a month as child support. The child support is to continue until the minor daughter reaches high school, at which time it will be increased to $200 a month until the child becomes 18, marriage or becomes self-supporting. The husband was required to provide medical and dental insurance for the child as available through his employment, and to maintain life insurance to provide for the child's support in the event of the husband's death.

The husband was also ordered to pay $500 toward the wife's attorneys' fees incurred in this litigation.

ISSUES

ISSUE ONE. Was the award of alimony to the wife reversible error?

ISSUE TWO. Was the property division reversible error?

ISSUE THREE. Was the award of child support reversible error?

ISSUE FOUR. Was the award of attorneys' fees to the wife reversible error?

DECISION

This case involves factual issues and the exercise of discretion by the trial court. As to these, certain principles are fundamental.

It is the province of the trial court to determine factual issues and we will not retry such issues on appeal. Bjorneby v. Bjorneby, 56 Wash.2d 561, 562, 354 P.2d 384 (1960); Roach v. Roach, 72 Wash.2d 144, 148, 432 P.2d 579 (1967). The trial court's findings of fact will be accepted as verities if there is substantial evidence in the record to support them. Thorndike v. Hesperian Orchards, Inc., 54 Wash.2d 570, 343 P.2d 183 (1959); Charles Pankow, Inc. v. Holman Properties Inc., 13 Wash.App. 537, 542, 536 P.2d 28 (1975).

As to the trial court's exercise of its discretion, more is required to establish an abuse of that discretion than disagreement with the trial court's opinion or an honest difference of opinion. Rehak v. Rehak, 1 Wash.App. 963, 965, 465 P.2d 687 (1970). To constitute an abuse of discretion, the discretion must have been exercised upon a ground, or to an extent, clearly untenable or manifestly unreasonable. Friedlander v. Friedlander, 80 Wash.2d 293, 304, 494 P.2d 208 (1972); Cleaver v. Cleaver, 10 Wash.App. 14, 16, 516 P.2d 508 (1973). In order to conclude that a trial court manifestly abused its discretion, an appellate court is required to find that no reasonable person would have ruled as the trial judge did. Richards v. Richards, 5 Wash.App. 609, 613, 489 P.2d 928 (1971).

ISSUE ONE.

CONCLUSION. The award of alimony or maintenance to the wife in the sum of $400 per month for a period of 10 years or until she earlier remarries or dies was not an abuse of the trial court's discretion under the facts presented.

Prior to the enactment of the Dissolution of Marriage Act in 1973, the courts of this state implied the authority to award alimony from statutes then in effect. Loomis v. Loomis, 47 Wash.2d 468, 288 P.2d 235 (1955). Courts considered a number of factors in deciding whether or not to award alimony and in what amount. Foremost among the factors to be considered by the court were the necessities and financial abilities of the parties, the need of the parties' children to be cared for, the age, earning capacity, health, education, restricted earning capacity, if any, and the prior financial contribution of each party. Kelso v. Kelso, 75 Wash.2d 24, 448 P.2d 499 (1968); Fowler v. Fowler, 71 Wash.2d 540, 429 P.2d 881 (1967); Mose v. Mose, 4 Wash.App. 204, 480 P.2d 517 (1971).

When this state replaced its divorce laws with the Dissolution of Marriage Act, what had previously been called 'alimony' came to be called 'maintenance' and the criteria for awarding it were set forth in RCW 26.09.090. Essentially these remain the same as under prior case law except that the factor of fault has now been excluded. See Rieke, The Dissolution Act, 49 Wash.L.Rev. 375 (1974); Holman, A Law in the Spirit of Conciliation and Understanding: Washington's Marriage Dissolution Act, 9 Gonzaga L.Rev. 39, 47 (1973).

The statute authorizing maintenance and establishing criteria therefore reads:

Maintenance orders for either spouse--Factors. (1) In a proceeding for dissolution of marriage, legal separation, declaration of invalidity, or in 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. The maintenance order shall be in such amounts and for such periods of time as the court deems just, without regard to marital misconduct, after considering all relevant factors including but not limited to:

(a) The financial resources of the party seeking maintenance, including separate or community property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;

(b) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find employment appropriate to his skill, interests, style of life, and other attendant circumstances;

(c) The standard of living established during the marriage;

(d) The duration of the marriage;

(e) The age, physical and emotional condition, and financial obligations of the spouse seeking maintenance; and

(f) The ability of the spouse from whom maintenance is sought to meet his needs and financial obligations while meeting those of the spouse seeking maintenance.

RCW 26.09.090.

Here the wife was 49 years of age, had no formal education beyond high school, and had virtually no employment history except for brief periods of time when she did largely unskilled work as a drugstore clerk and later as a teacher's aide. During the marriage, her husband had deemed it advisable that she remain home and raise the children. She raised two children to maturity and now has a young daughter. As the trial court found with respect to the wife, 'her age, lack of training and qualifications will tend to confine her to employment of low income and uncertain tenure.' And, in addition, 'she will be required to maintain and provide a home, supervision and care for the child . . .'

The husband, by contrast, has been steadily employed all of his adult years. He has held a steady job as plant superintendent at a manufacturing plant since 1968, earns a good salary and his future job prospects appear excellent.

An award of maintenance, including its duration, lies within the sound discretion of the trial court. In re Melville, 11 Wash.App. 879, 881, 526 P.2d 1228 (1974). Maintenance provisions under the present act are still subject to modification upon a proper showing of a substantial change in circumstances, RCW 26.09.170, and that is a factor which we have considered in reviewing the discretion which the trial court exercised in fixing the term of the maintenance award. See Ovens v. Ovens,61 Wash.2d 6, 9, 376 P.2d 839 (1962). We cannot say that no reasonable person could have ruled as the trial judge did in this regard. We therefore hold that there was no abuse of discretion by the trial court in making the maintenance award that it did.

ISSUE TWO.

CONCLUSION. Property does not necessarily have to be divided equally in order to constitute a fair division of property in a marriage dissolution case. The trial court did not abuse its discretion in this regard under the facts of this dissolution case, when...