Michaluk v. Burke

• Decision Date: 19 March 1987
• Docket Number: No. 8954,8954
• Citation: 1987 NMCA 44,105 N.M. 670,735 P.2d 1176
• Parties: William MICHALUK, Petitioner-Appellant and Cross-Appellee, v. Victor BURKE, Donna Burke-Taylor and Jeffery Burke, Surviving Children of Josephine E. Michaluk, Deceased, Respondent-Appellee and Cross-Appellant.
• Court: Court of Appeals of New Mexico

Page 1176

735 P.2d 1176

105 N.M. 670

William MICHALUK, Petitioner-Appellant and Cross-Appellee, v. Victor BURKE, Donna Burke-Taylor and Jeffery Burke Surviving Children of Josephine E. Michaluk Deceased, Respondent-Appellee and Cross-Appellant.

No. 8954.

Court of Appeals of New Mexico.

March 19, 1987.

[105 N.M. 672] Martha A. Daly, Rothstein, Bailey, Bennett, Daly & Donatelli, Santa Fe, Stevan Douglas Looney, Albuquerque, for petitioner-appellant and cross-appellee.

Jeffery Burke, pro se.

Donna Burke-Taylor, pro se.

Victor Burke, pro se.

OPINION

BIVINS, Judge.

In this divorce action, husband-petitioner (husband) appealed and wife-respondent (wife) cross-appealed. After entry of the divorce decree and final judgment, but before resolution by this court, wife died. We granted leave for the parties to file supplemental briefs regarding what effect wife's death had on the issues before us.

Husband raises two issues on appeal: (1) whether the trial court abused its discretion in awarding lump sum alimony of $35,000; and (2) whether the trial court abused its discretion in awarding wife attorney fees. In his supplemental brief, husband contends that wife's right to collect lump sum alimony abated upon her death. Husband also challenges the substitution of wife's children as parties to this appeal.

Wife's cross-appeal raises two issues: (1) whether the trial court erred in awarding property to husband as his sole and separate property, based on husband's oral testimony of its character; and (2) whether the trial court erred when it failed to make an ultimate finding of fact regarding when title to the property was acquired. Wife's children filed no supplemental brief. We affirm the trial court on all issues raised before wife's death. As to the issues raised in husband's supplemental brief, we hold that wife's death has no effect on the judgment entered below and that wife's children are proper parties to this appeal.

The parties married in 1968. At the time of divorce, the parties owned community property worth approximately $21,000, which they divided equally by agreement. When the final decree of divorce was entered wife was sixty-seven¹ years old, in poor health and unemployable. She had minimum assets and income. Based on these factors, the trial court found that wife was entitled to alimony and awarded $35,000 in lump sum alimony. The trial court found lump sum alimony appropriate because of wife's intent to leave the state to be near her children, and because the incompatibility between the parties made it unlikely that husband would continue to make periodic payments without further court proceedings, which neither could afford. The trial court awarded wife $2,000 in attorney fees and court costs.

Also in dispute was the status of a four-plex apartment building in Albuquerque, valued at $100,000. Husband claimed that he purchased the building as his separate property prior to their marriage; wife claimed that she was involved in the purchase of the property and helped manage it. The trial court found the four-plex to be husband's sole and separate property. A final decree of dissolution of marriage and judgment in the amount of $38,227.15, with interest at 15% per annum, were entered on November 6, 1985.

LUMP SUM ALIMONY AWARD

Husband concedes that wife is entitled to alimony, but disputes the award of lump sum alimony in the amount of $35,000. In reviewing the trial court's award of alimony, we consider only whether the award was contrary to all reason. Hodges v. Hodges, 101 N.M. 67, 678 P.2d 695 (1984). We do not substitute our judgment for that of the trial court.

Factors to consider in determining whether to award alimony and, if awarded, the adequacy of the amount, include the spouse's needs, age, health, means available for support, the payor spouse's earning capacity, the duration of the marriage, and the amount of property owned by each party. Blake v. Blake, 102 N.M. 354, 695 P.2d 838 (Ct.App.1985). The trial court found that wife was aged, in ill health, unemployable and had minimal assets. Also, the marriage lasted seventeen years and husband was leaving the marriage with over $110,000 in assets. We agree with the parties that alimony was appropriate.

The evidence indicated that husband had failed to pay monthly obligations to his first wife, that his current wife wanted to leave New Mexico, that husband had spent over $1,000 in food and entertainment expenses over a six-week period, that wife had long-term medical and living expenses, that husband would leave the marriage with over $110,000 of assets while wife had about $10,000 of assets, and that husband and wife were unable to communicate with each other to any degree. Given these factors and the inferences drawn from them, we cannot say that the trial court abused its discretion in awarding lump sum alimony to wife.

Husband urges this court to adopt a rule that trial courts should routinely award periodic alimony and reserve the award of lump sum alimony only for compelling circumstances. Our statutes do not so provide and we decline to adopt such a rule. NMSA 1978, Section 40-4-7(B)(1) (Repl.1986) provides the trial court the option of awarding "a reasonable sum of money * * * either in a single sum, or in installments, as alimony, as under the circumstances of the case may seem just and proper[.]" Section 40-4-7 states no preference for one form of alimony over the other, and we will not interfere with the trial court's statutorily authorized discretion. Statutes should be given effect as written, and where free from ambiguity, there is no room for construction. State v. Lujan, 103 N.M. 667, 712 P.2d 13 (Ct.App.1985).

Husband also argues that the amount of alimony was excessive and that he should not be forced to pay the lump sum from his separate property. We disagree. The trial court's discretion to award alimony is limited only to the grant of a reasonable sum, given the facts of the particular case. Redman v. Redman, 64 N.M. 339, 328 P.2d 595 (1958). Given wife's needs and her lack of assets, we find the trial court's award reasonable. See Redman v. Redman; Golden v. Golden, 41 N.M. 356, 68 P.2d 928 (1937).

In so holding, we have considered husband's argument that the trial court's finding reflects little regard for his earning capacity and future earnings as required. Michelson v. Michelson, 86 N.M. 107, 520 P.2d 263 (1974); Blake v. Blake. Husband points out that the trial court found that he is sixty-eight years old, unemployed and receives $392 monthly from social security. Since he depends upon his social security and net rentals for his livelihood, and it was an accepted fact at trial that he could not borrow the money to pay the lump sum alimony award, his only recourse is to sell the four-plex. Relying on Ellsworth v. Ellsworth, 97 N.M. 133, 637 P.2d 564 (1981), husband asserts he should not be required to sell his only asset, upon which this livelihood depends, to satisfy the alimony award.

Additionally, husband contends there is no evidence as to the amount necessary to meet wife's needs. We disagree. Wife projected $1,000 a month for living expenses, including medical bills. We note that the trial court awarded wife, pending the appeal and before her death, $250 a month plus rent-free occupancy at the four-plex if she returned to Albuquerque, and $425 a month if she did not return. Given the circumstances of wife's age, condition of health, and her needs, the sum of $425 a month does not appear unreasonable. Using that figure and applicable annuity tables, the resultant value of future alimony payments computed at five percent discount, compounded annually, comes to $34,989.57.² Of course, a lower monthly sum or a higher discount rate would lower the present value. Nevertheless, the rough calculation, taking judicial notice of the tables discussed, demonstrates that the $35,000 figure can be supported when a modest monthly sum is projected.

The dilemma faced by the trial court prompted its comment that the award was not enough for wife and too much for husband. Nevertheless, the trial court fashioned, as best it could, a fair resolution. The fact that husband will have to sell the four-plex, while burdensome, should not leave him destitute. Assuming a sales price of $100,000, husband will still have approximately $65,000, less cost of sale, plus $10,000 in additional community property to invest. In addition, husband has his social security of $392 a month. Further, lump sum alimony, as opposed to monthly payments, would not likely have been awarded but for husband's poor track record with his first spouse, the acrimonious relationship with wife here, and his own equivocations about paying her alimony. That husband may have to sell his four-plex is due in part to his own actions. Ellsworth does not require a different result. That case concerns the liquidation of property by the recipient of alimony. Here, we are dealing with the sale of separate property by the payor to satisfy his obligation for alimony, which Section 40-4-7 authorizes.

As to husband's argument that his separate property should not be used to pay alimony, we point out that this assertion directly contradicts Section 40-4-7(B)(1), which allows the trial court to award "either party such a reasonable portion of the spouse's separate property" as alimony. See also NMSA 1978, Sec. 40-4-12 (Repl.1986). New Mexico cases have stated that the trial court can award alimony from either the community property or separate property of a spouse. Ridgway v. Ridgway, 94 N.M. 345, 610 P.2d 749 (1980); Harper v. Harper, 54 N.M. 194, 217 P.2d 857 (1950); Golden v. Golden.

Even if the alimony award was higher than we might have awarded, Bilbao v Bilbao, 102 N.M. 406, 696 P.2d 494 (Ct.App.1985), or lower than we might have awarded, Mattox v. Mattox, 105 N.M. 479, 734 P.2d 259 (Ct.App.1987), we cannot say that the trial court abused its...