Messina v. Messina

• Decision Date: 22 September 1978
• Docket Number: No. 3508,3508
• Citation: 583 P.2d 804
• Parties: Anthony M. MESSINA, Appellant, v. Marjorie P. MESSINA, Appellee.
• Court: Alaska Supreme Court

Page 804

583 P.2d 804

Anthony M. MESSINA, Appellant, v. Marjorie P. MESSINA, Appellee.

No. 3508.

Supreme Court of Alaska.

Sept. 22, 1978.

Richard D. Savell, Aschenbrenner & Savell, Fairbanks, for appellant.

No appearance for appellee.

Before BOOCHEVER, Chief Justice, and RABINOWITZ, CONNOR, BURKE and MATTHEWS, Justices.

OPINION

MATTHEWS, Justice.

The issue in this case is whether the trial court abused its discretion in awarding alimony of $200 per month to Marjorie Messina "until such time as she shall remarry or lives with another man." In our prior decisions we have not emphasized the statutory standards for an alimony award. ¹ They are that it be "just and necessary." ² Instead, we have noted that the factors to be considered are the same as those which are relevant where the sole issue is the division of marital property. ³ While those factors do supply some guidance as to when and to what extent alimony is "just and necessary", they are not substitutes for the statutory standard, nor are they all that should be said about the standard.

The Uniform Marriage & Divorce Act, approved by the National Conference of Commissioners on Uniform State Laws and recommended for passage by the states by the American Bar Association, provides for alimony only if the spouse seeking maintenance:

1. lacks sufficient property, . . . to provide for his reasonable needs; and

2. is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian may not be required to seek employment outside the home. ⁴

The comment pertaining to these provisions states:

The dual intention of this section and Section 307 (property division) is to encourage the court to provide for the financial needs of the spouses by property disposition rather than by an award of maintenance. Only if the available property is insufficient for the purpose and if the spouse who seeks maintenance is unable to secure employment appropriate to his skills and interests or is occupied with child care may an award of maintenance be ordered.

We believe that the foregoing should be considered, together with the Merrill factors, Supra note 3, in determining when it is necessary and just that alimony be awarded.

Here the superior court, understandably in view of our past decisions, made no finding as to whether alimony was necessary and just. Our study of the record does not lead us to the inevitable conclusion that the award was justified, however adequate findings might remove our doubts. Therefore the award of alimony is vacated, and the case is remanded for the purpose of making appropriate findings. If the trial judge concludes in light of this opinion that the evidence does not...