Norton v. Norton

• Decision Date: 05 December 1966
• Docket Number: No. 8290,8290
• Citation: 420 P.2d 578,101 Ariz. 444
• Parties: Lorraine NORTON, Appellant and Cross-Appellee, v. Robert L. NORTON, Appellee and Cross-Appellant.
• Court: Arizona Supreme Court

Page 578

420 P.2d 578

101 Ariz. 444

Lorraine NORTON, Appellant and Cross-Appellee, v. Robert L. NORTON, Appellee and Cross-Appellant.

No. 8290.

Supreme Court of Arizona, In Banc.

Dec. 5, 1966.

Patrick W. O'Reilly, Phoenix, for appellant and cross appellee.

Allan K. Perry, Perry & Perry, Phoenix, for appellee and cross appellant.

McFARLAND, Justice:

Lorraine Norton, hereinafter designated as plaintiff, and Robert L. Norton, hereinafter designated as defendant, were married on August 8, 1942.

On August 24, 1962, a decree of divorce was granted to plaintiff in which she was awarded the sum of $250.00 per month for her support and maintenance and $100.00 per month each for the support of the two minor children.

Approximately a year later--in October 1963--defendant petitioned the court for a modification of the decree on the ground there had been a change of circumstances, alleging that a daughter--one of the minor children--had since married, and that plaintiff who was unemployed at the time of the divorce had since secured employment as a probationary schoolteacher in Maricopa County.

The court entered an order modifying the decree terminating the payment of $250.00 per month for plaintiff's support and maintenance and the $100.00 per month for the support of the child who had since married, with only the support payment for the unmarried child to remain in effect. It is from the order of the court terminating the payments of $250.00 per month for her support and maintenance that plaintiff appeals. Her assignments of error are as follows:

'1. The trial court's order completely terminating the support payments to the plaintiff was not supported by the evidence before the Court and was an abuse of the discretion allowed the Court under Section 25--321, A.R.S., and was therefore error.

'2. The trial court erred in refusing to consider, on defendant's petition for modification and reduction of support payments, evidence of the former wife's necessary living expenses, her then indebtedness, and other circumstances.'

The questions presented to the court are whether the change in circumstances of the parties justifies the modification of the decree terminating the $250.00 per month for the support and maintenance of plaintiff and whether the court erred in refusing to consider plaintiff's necessary living expenses, her indebtedness, and other circumstances which had changed since the decree of divorce.

The evidence showed that at the time of the divorce defendant's gross income was some $12,000; and that at the time of the hearing on the order--according to his Federal Income Tax return which was introduced in evidence--his gross salary was $13,948.80, and that he had additional income, making a total gross of $17,923.29. The evidence also showed he had since married, and that his present wife's income for 1962 was $6,025.20, resulting in a combined income of defendant and his wife of over $23,000.

It was further shown in the evidence that in the interim period plaintiff, who was a housewife at the time of the divorce, had attended Arizona State University and obtained a bachelor's degree in Education and a teacher's certificate, and was employed as a probationary teacher in the Isaac School District in Phoenix, Arizona, at a salary of $391.60 per month. Also, one of the two minor children of the marriage, for whom defendant was paying support, had married and was no longer in her mother's custody. Plaintiff in her appeal makes no objection to the elimination of the award for support of this child.

A.R.S. § 25--321 permits such modification of a decree providing for the support and maintenance of a wife 'as may be just.' In Stone v. Stidham, 96 Ariz. 235, 393 P.2d 923, this court stated:

'The term 'alimony' does not contemplate a settlement of property interest or general endowment of wealth. Like the alimentum in civil law from which the word was derived it has for its sole object the provision of food, clothing, habitation and other necessities for support. * * *' 96 Ariz. at 238, 393 P.2d at 925.

If alimony is not necessary for plaintiff's support and maintenance, defendant should not be required to pay it. Franklin v. Franklin, 75 Ariz. 151, 253 P.2d 337; Tennery v. Tennery, 35 Ariz. 69, 274 P. 638. However, in determining what is necessary there are certain matters the court must consider. The court, in making a determination as to whether a decree for support and maintenance should be modified, is governed by the same factors as are required in determining the reasonableness of an award for support and maintenance at the time of the original decree. Haskell v. Haskell, 119 Minn. 484, 138 N.W. 787; Bartow v. Bartow, 170 Wash. 409, 16 P.2d 614. The court, in the consideration of these factors, should consider any change in the circumstances of the parties since the original decree.

All factors must be considered in determining the reasonableness of an award for alimony, including the financial and other circumstances of the parties, their earnings and their social standing in life at the time of the entry of the decree, the needs of the wife, her ability to support herself, and the husband's ability to pay. In Kennedy v. Kennedy, 93 Ariz. 252, 379 P.2d 966, we said:

'* * * The factors to be considered include the needs of the wife and her ability to support herself, Franklin v. Franklin, 75 Ariz. 151, 253 P.2d 337 (1953), the ability of the husband to pay, Tennery v. Tennery, 35 Ariz. 69, 274 P. 638 (1929); and the other circumstances of the parties including their standard of living.' 93 Ariz. at 258, 379 P.2d at 971.

This court, in setting forth factors to be considered, said in Smith v. Smith, 89 Ariz. 84, 358 P.2d 183:

'Not only must the court consider the necessities measured by ability of the wife to acquire daily work but the Court must, as was properly stated in Oliver v. Oliver, Ky., 258 S.W.2d 703, 704, 'consider * * * the wife's estate, her necessities, measured by the social position in which her marriage placed her." 89 Ariz. at 87, 358 P.2d at 185.

In the case of Becker v. Becker, 64 Cal.App.2d 239, 148 P.2d 381, the court said:

'As we understand the phrase 'circumstances of the parties' as used in the decisions, it refers to the needs of the parties and the abilities of the parties to meet such needs; and in measuring such circumstances, consideration should be given to property owned and obligations to be met as well as to ability to earn and actual earnings. * * *' 148 P.2d at 383.

The wife's debts were held to have been properly considered by the trial court in Hardy v. Hardy, 221 Ga. 176, 144 S.E.2d 172, and the wife's obligations and expenses have been frequently considered on appeal, e.g., Dickison v. Dickison, 65 Wash.2d 585, 399 P.2d 5; Reese v. Reese, 190 Cal.App.2d 181, 11 Cal.Rptr. 590. Plaintiff's employment will normally create an added expense in transportation to and from her school, as in Gann v. Gann (Ky.) 347 S.W.2d 540. The fact that she is only a probationary teacher, and has no savings or reserve for contingencies is also relevant. Miner v. Miner, 10 Wis.2d 438, 103 N.W.2d 4.

In the case of Young v. Young, 262 Ala. 254, 78 So.2d 265, the court said:

'The mere fact that the wife has secured employment since the entry of the decree for alimony is not within itself a ground for modification. It is but a circumstance to be considered along with all the other evidence on the issue of changed conditions. Jones v. Jones, 251 Ala. 179, 181, 36 So.2d 310; Morris...