Porreca v. Porreca, 2

• Citation: 8 Ariz.App. 394,446 P.2d 500
• Decision Date: 29 October 1968
• Docket Number: No. 2,CA-CIV,2
• Parties: Betty Lou PORRECA, Appellant, v. Charles C. PORRECA, Appellee. 539.
• Court: Arizona Court of Appeals

Page 500

446 P.2d 500

8 Ariz.App. 394

Betty Lou PORRECA, Appellant, v. Charles C. PORRECA, Appellee.

No. 2 CA-CIV 539.

Court of Appeals of Arizona.

Oct. 29, 1968.

Silver, Silver, Ettinger & Karp by Leonard Karp and James J. Silver, Tucson, for appellant.

Arthur R. Buller, Tucson, for appellee.

KRUCKER, Judge.

Action for divorce. This appeal is by the plaintiff from that portion of the divorce decree providing that she be paid alimony in the amount of $700 per month for two years, or until she remarries, whichever should first occur. The only issue before this court is the propriety of the two-year cutoff, and whether the trial court, in providing that alimony payments should run no longer than two years, abused its discretion.

The parties were married in 1949, and in October of 1967, judgment was entered granting plaintiff a divorce.

Defendant is a physician, and virtually all of his training and preparation for this profession was acquired during the 18-year period of the marriage. Defendant entered the practice of medicine in 1961, and his net income before taxes from this practice in the last full year, that is, 1966, before the trial was approximately $30,000. Defendant's income for the first five months of 1967 indicates that his income before taxes for calendar year 1967 should be approximately the same as his income for 1966.

Plaintiff does not have a profession, nor does she presently possess any particular employment skills, although in the past she has been employed, at irregular intervals, for some office work and accounting work. Plaintiff has not been employed since her husband, the defendant, entered the practice of medicine in 1961, and she has had no income of her own since that time. At the time of the trial, plaintiff had acquired approximately one-fourth of the college credits required to obtain a teaching degree from the University of Arizona, and plaintiff expects that it will take from two and one-half to three years to complete her studies in that curriculum.

The divorce decree, in dividing the community property, gave to defendant all the assets and equipment of his medical practice including the accounts receivable, an Austin-Healy automobile, approximately $1500 in corporate securities, and a few personal items. Plaintiff's share of the property division consisted of a 1965 Thunderbird automobile, the household furniture, a note for $15,000 secured by a second mortgage, and her personal items. Plaintiff's parents are the obligors on the aforesaid note, and this note has lost its security subsequent to the trial due to a foreclosure by the first mortgage. It does not appear that either party owned any separate assets at the time of the trial which were capable of producing income.

The portion of the decree from which this appeal is taken reads as follows:

'IT IS HEREBY ORDERED, ADJUDGED AND DECREED as follows:

3. That the Defendant is to pay to the Plaintiff, as and for alimony, the sum of SEVEN HUNDRED ($700.00) DOLLARS per month for a period of two years, bebinning on August 1, 1967, or until she remarries, whichever is sooner.'

It is plaintiff's position that the trial court, in ordering that the alimony should continue no longer than two years, abused its discretion.

In determining what amount should be awarded as alimony the trial court has broad discretion, Kennedy v. Kennedy, 93 Ariz. 252, 379 P.2d 966 (1963), and where there is any reasonable evidence to support the judgment of the trial court, we will not disturb it. Smith v. Smith, 89 Ariz. 84, 358 P.2d 183 (1960). However, the trial court, in the exercise of its discretion, must do so within certain guidelines, and in making an award of alimony there are three broad and basic criteria to be considered. First, the financial needs of the wife, measured by the social position into which her marriage placed her. Second, the ability of the wife to produce income sufficient to sustain her in this status, either by her own labors or as a result of income-producing property which she may own. The third criterion is the financial condition of the husband and his ability to make payments for the support and maintenance of his former wife. Kennedy v. Kennedy, supra, 93 Ariz. at 258, 379 P.2d 966.

We are in agreement with plaintiff's contention that the alimony award was not a lump sum award payable in installments. Our court has said that an alimony award will be a lump sum in case it is '* * * an unqualified allowance in gross * * *', and it is such a '* * * definite and final adjustment of mutual rights and obligations as to be capable of a present vesting and to constitute an absolute judgment * * *.' Barnett v. Barnett, 96 Ariz. 226, 228, 388 P.2d 433, 435 (1964). The decree before us does not satisfy this definition inasmuch as the right to receive the payments under the decree would be terminated upon the occurrence of a future event uncertain, the plaintiff's remarriage.

Plaintiff gave evidence at the trial that the amount necessary to maintain herself and her daughter in their station in life was approximately $1,100 per month. The court allowed plaintiff $700 per months as described above, and, as support for the minor child of the parties, an allowance of $200 per month was made without a cutoff date, and the amounts themselves have not been appealed.

Since the monthly amount of $700 is not here in dispute, we shall direct our attention to the provision that the allowance shall terminate at the end of two years. If there be any reasonable evidence in the record to show that plaintiff...