Porter v. Porter, 11806
| Decision Date | 29 July 1970 |
| Docket Number | No. 11806,11806 |
| Citation | 473 P.2d 538,155 Mont. 451 |
| Parties | Agnes I. PORTER, Plaintiff and Respondent, v. Robert J. PORTER, Defendant and Appellant. |
| Court | Montana Supreme Court |
Berger, Anderson & Sinclair, James J. Sinclair, argued, Billings, for defendant and appellant.
Derry, Hanser & Derry, Harold F. Hanser, argued Billings, for plaintiff and respondent.
Respondent, Agnes I. Porter, on April 3, 1968, sought relief in the district court of Yellowstone County on an order to show cause citing appellant, Robert J. Porter, to appear and show cause why he should not be held in contempt for failure to pay alimony from July 1966. This action was founded on a divorce decree entered April 26, 1948, wherein appellant was ordered to pay respondent $150 per month as alimony and $75 per month for each of two minor children, Jerome, then age 11 years, and Richard, then age 2 years, for their support, maintenance and education. This judgment was in accord with a separation and property settlement agreement previously entered into by the parties, approved by the district court, and incorporated into the decree of divorce.
The property settlement in general terms gave the home, furnishings, family car, a piece of property on Poly Drive, Billings, Montana, and certain Hamilton funds to respondent Agnes Porter. Respondent agreed to '* * * properly care for, maintain and educate said minor children.' Appellant, Robert Porter, received the business properties which consisted of a liquor and beer license to the Elmo Club and some 77.61 acres of land upon which it was located.
Appellant filed responsive pleadings by petition asking the original decree of divorce be amended to relieve appellant from any further obligation to continue alimony payments to respondent; and further denied he was delinquent in alimony payments.
On August 15, 1969, the matter was heard by the district court and oral testimony and exhibits were received and the matter submitted.
Both parties agree the obligations under the decree are decretal and not contractual.
It was uncontradicted that appellant completed his child support obligation under the decree until both minor children attained the age of majority and appellant had paid his alimony obligation regularly, through the month of July 1966. There was no evidence of alimony payments after July 1966. Evidence was received that appellant made extra payments by introcution of exhibit 'A' and appellant testified exhibit 'A' to be true and correct. It was not established that the amounts indicated in exhibit 'A' were paid to alimony.
The circumstances or change thereof of the parties was in general agreement for the most part and revealed that respondent, Agnes Porter, did not remarry and became employed full time in 1966 at which time the youngest child was 20 years of age. Respondent's income at the time of the hearing was $72 per week salary and $70 per month from apartment rental in her home. Her average monthly expenses for the past 3 years was $285. Income figures were gross and no net figures were produced.
Appellant remarried after the divorce and has a second family, Debbie Porter, age 19, Pat Porter, age 16, Mike Porter, age 15, at the date of the hearing.
The business properties received at the time of the divorce by the appellant were sold and/or traded for a similar type of business in 1950-51. The new business is the Turf, Inc. which is operated as a corporation with appellant as manager, corporate officer, and stockholder. Appellant's present wife has an undisclosed interest in the Porterhouse Corporation located on 8 acres of land, a portion of the Elmo Club property, originally owned by the appellant.
Evidence of each party's circumstances was received from the party themselves, subject only to cross examination. No other evidence on these matters was offered by either party.
The district court found a failure to pay alimony but ruled it did not constitute contempt of that court. The court ordered appellant to pay to respondent $150 per month commencing with August 1, 1966, through September 31, 1969. The court further ordered a reduction in alimony payments from $150 per month to $100 per month, commencing on October 1, 1969.
From this judgment appellant appeals on three issues:
1. The evidence does not justify the continuance of alimony payments by appellant to respondent.
2. The evidence does not support the order of the court that appellant owes respondent any money.
3. The court abused its discretion in not striking from the divorce decree the alimony award to be paid by appellant to respondent, and in finding appellant in arrears in alimony payments.
Appellant advances two arguments in support of his position. (1) Respondent has had an imporved change in circumstances and is self-sustaining and with the $100 alimony award is financially better off than appellant. (2) Appllant is financially unable to pay the alimony award by virtue of having less income than respondent, and he is burdenced with family obligations.
Appellant declares the first argument to be the principal one and bases his contention on respondent's gross income for the past several years and alleges her 1969 income from wages and apartment rental to be $348 per month net, with $285 monthly expense, giving her a $60 plus monthly profit.
As heretofore indicated, there is no evidence in the record to support appellant's claim that the income attributed to respondent is net income. All figures produced are gross income figures. A close examination of the income tax returns of respondent, filed as exhibits, reveals the net income of respondent to be a substantially lesser amount. This does not square with appellant's argument claiming the respondent enjoyed a $60 per month income profit over her expenses. It would seem to reflect a loss for each year that tax returns were furnished.
We next discuss appellant's secondary argument, that consideration be given to his change in circumstances.
The only evidence of appellant's circumstances at the time he agreed to pay $300 per month in 1948, is by his own testimony, 'Everything that we had at that time I give to her, outside of the license.' The record indicates the license he retained to be located in the Elmo Club, together with...
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