Olsen v. Olsen

• Decision Date: 17 November 1976
• Docket Number: No. 12022,12022
• Citation: 557 P.2d 604,98 Idaho 10
• Parties: Frances OLSEN, Plaintiff-Respondent, v. Wilfred L. OLSEN, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 604

557 P.2d 604

98 Idaho 10

Frances OLSEN, Plaintiff-Respondent, v. Wilfred L. OLSEN, Defendant-Appellant.

No. 12022.

Supreme Court of Idaho.

Nov. 17, 1976.

Rehearing Denied Dec. 9, 1976.

Ben Peterson of Baum & Peterson, Pocatello, for defendant-appellant.

Gordon S. Thatcher of Rigby, Thatcher & Andrus, Rexburg, for plaintiff-respondent.

DONALDSON, Justice.

Wilfred L. Olsen, defendant-appellant, petitioned the district court for an order modifying a decree of divorce entered on the 1st day of March, 1946. The decree ordered Olsen to pay Mrs. Olsen $100 per month for each of two minor children, and further to pay $200 per month as alimony until Mrs. Olsen remarried. Olsen moved the court to modify the decree on the alleged grounds of a material and permanent change in his circumstances. The district court denied Olsen's motion to modify on the basis that Olsen failed to show a sufficient change in his circumstances and Olsen has appealed.

Olsen claims that his retirement from the active practice of medicine has reduced his earnings, and constitutes a change in his financial ability to pay alimony. The district court found that Olsen's taxable income for 1972 and 1973 was approximately $45,000. After the doctor's retirement, his income under a retirement provision of an inter-vivos trust was $19,762. Additionally, the court found that Olsen received from socal security the sum of $2,639.20, for a total income of $22,451.43. Olsen listed his estimated living expenses for 1975 as $15,377.52, including $437 for malpractice insurance. Olsen's estate included a trust with a principal at the time of trial in excess of $200,000.

Mrs. Frances Olsen testified that she too has experienced a change in her financial circumstances. Her income for 1975 was reduced as a result of mandatory retirement upon reaching the age of 65. The court found that her 1974 income was $14,200. Mrs. Olsen testified at trial that her 1975 income is $536 a month from retirement, which totals $6,432 per year. Additionally, Mrs. Olsen has a savings account in the amount of $30,000 from which she receives interest monthly in the amount of $125. She also receives each month $200 as alimony payment, making her current monthly income a sum of $861 or $10,332 annually. Mrs. Olsen's current living expenses total the sum of $911.08 per month or $10,933 annually. Mrs. Olsen also owns a lot worth approximately $14,000 but which she has been unable to sell for five years.

The trial court concluded that while there had been a change in the financial condition of appellant since the entry of the divorce decree, it was not sufficient to justify a modification of the decree and the elimination of alimony.

Appellant claims that the court erred in finding that his financial position had decreased and yet refusing to eliminate the alimony payments from the decree. In determining whether alimony payments are just the court must consider the correlative needs and abilities of both parties. Shepard v. Shepard, 94 Idaho 734, 497 P.2d 321 (1972).

Here, while it is true that Olsen's income from his medical practice has decreased substantially due to his retirement, it is also true that he admits that he will return to active practice if he finds it 'necessary.' Additionally, the court may consider all sources of income, including pensions, in ascertaining Olsen's ability to pay alimony; and the record shows that the appellant has income of nearly $20,000 annually from a trust fund.

Mrs. Olsen, as already noted, reached mandatory retirement age in 1974 and has had her annual income reduced from $14,000 to $10,300 including the alimony. With the continuance of the $200 per month alimony, she still will be unable to meet her expenses without reaching into her savings or reducing her standard of living.

The moving party has the burden of establishing a material, permanent and substantial change in circumstances. Larkin v. Larkin, 85 Idaho 610, 382 P.2d 784 (1963); Daniels v. Daniels, 82 Idaho 201, 351 P.2d 236 (1960). It was the trial court's conclusion that appellant failed to meet the burden. As the resolution of this question rests within the discretion of the trial court it will not be disturbed on appeal unless an abuse of discretion is shown. See Embree v. Embree, 85 Idaho 443, 380 P.2d 216 (1963); Jarvis v. Jarvis, 218 Kan. 679, 544 P.2d 1384 (1976); Ridge v. Ridge, 542 P.2d 189 (Utah 1975). It is our opinion that no such abuse of discretion occurred in this case.

Affirmed. Costs to respondent.

McFADDEN, C. J., and BAKES, J., concur.

SHEPARD, Justice (dissenting).

The parties hereto were divorced following a ten year marriage. Thereafter the appellant faithfully paid his wife for the support of the children of the marriage until they reached majority. Following the divorce and for the ensuing thirty years, he also faithfully, conscientiously and without interruption paid alimony to his former wife. The majority opinion holds that the trial court did not abuse its discretion in finding that the appellant failed to prove a material, permanent and substantial change in the correlative needs and abilities of the parties.

I dissent for two reasons. First, the standard to be applied to questions of alimony was enunciated by a unanimous Court in Phillips v. Phillips, 93 Idaho 384, 462 P.2d 49 (1969), and in my opinion the application of that standard to the facts of this case clearly demonstrates that the petitioner amply satisfied his burden of proof. Petitioner's sole error, if error it was, was failure to apply for a modification at an earlier period of time.

Secondly, I believe that the facts of the instant case emphasize the need for re-examination of the entire concept of alimony and the continuing viability of that concept in contemporary society. Put in different words, the question facing the Court is whether a judicially imposed system of involuntary servitude is to be continued wherin one human being is placed in bondage to another for what is effectively the remainder of his natural life.

I.

This Court enunciated the standard governing the instant action in Phillips. There we affirmed the termination of alimony to an ex-wife who was found 'able to support herself without the continued assistance of her former husband.' It was intended that that opinion would clarify principles with respect to the doctrines of 'merger' and 'integration' which had been vexing problems in the law of domestic relations in this jurisdiction. However, what was described as the 'larger question' therein presented and ruled upon was the concept of alimony.

The issue in Phillips was phrased in terms of the conflicting policy considerations which result from society's interest in avoiding the burden placed upon it by a divorcee unable to care for herself as contrasted with the burden placed upon her former husband by subjecting his future income to a perpetual lien. I had understood until today that this Court had chosen to strike a balance in these concerns by restricting alimony awards to those circumstances where the inability of the former wife to care for herself and the potential burden upon society were both real and established. I had also labored under the belief until the instant case that absent establishment of the wife's need and general inability the matter of the abilities of the ex-husband did not require consideration. These impressions are preserved in the following statement from Phillips:

'When two people are divorced from each other, as we have said herein, there are certain obligations incumbent upon our courts. The first and most important thereof is to make provision for the custody, support and maintenance of the minor children, if any, of the parties. Thereafter the court should arrive at an equitable distribution of the community property accumulated by the parties in consideration of all of the circumstances. Thereafter the parties should go their own way with a dissolution of all obligation and debts to each other. Unfortunately, ideal circumstances do not always exist and the situation must be modified according to the wisdom and discretion of the trial judge. If circumstances show the needs and correlative abilities of the parties, we are confident that alimony or wife support will continue to be awarded.

'On the one hand, no ex-wife need be cast onto the public assistance rolls and be a burden upon society if she is unable to care for herself and her former husband has the ability to contribute to her support and maintenance. We emphasize that our statement is conditioned upon the inability of the wife to care for herself and not her unwillingness to do so. On the other hand, no man should be required to go through life following divorce with the financial millstone of a vengeful ex-wife hung around his neck when such a situation serves no need of society.' (At 388, 462 P.2d at 53.)

Until today it was my belief that this opinion represented an effort by this Court to define the continued social function (if any) and the practical and legal parameters of alimony in this the 20th century. My belief was reinforced by this Court's later decision in Glavin v. Glavin, 94 Idaho 813, 498 P.2d 1286 (1972), where, affirming the denial of alimony to a former wife, we summarized the rule in Phillips:

'* * * to the effect that alimony should only be awarded where the wife is unable (versus unwilling) to support herself and there is a possibility of her becoming a public burden by being placed on public assistance.' At 816, 498 P.2d at 1289 (emphasis added)

With the opinion of the majority today, however, it appears that the standard declared in Phillips and Glavin has been overturned, albeit not expressly, and I know not what standard the courts of Idaho are now to utilize in determining the propriety of alimony awards.

Our result in Phillips was influenced considerably by certain factors concerning the correlative needs and...