Rabie v. Ogaki

• Citation: 860 P.2d 785,1993 NMCA 96,116 N.M. 143
• Decision Date: 05 August 1993
• Docket Number: No. 14122,14122
• Court: Court of Appeals of New Mexico
• Parties: Ronald L. RABIE, Petitioner-Appellee, v. Sachiko OGAKI, Respondent-Appellant.

Page 785

860 P.2d 785

116 N.M. 143

Ronald L. RABIE, Petitioner-Appellee, v. Sachiko OGAKI, Respondent-Appellant.

No. 14122.

Court of Appeals of New Mexico.

Aug. 5, 1993.

[116 N.M. 144] F. Stephen Boone, Griffith, Boone and Cruse, Los Alamos, for petitioner-appellee.

Sachiko Ogaki, pro se.

OPINION

HARTZ, Judge.

Sachiko Ogaki appeals from an award of spousal support¹ and attorney's fees in a supplemental judgment of the district court. She contends that the award against her former husband, Ronald Rabie, is inadequate in that (1) the district court erred in limiting Rabie's obligation to pay spousal support to a maximum of four years and in ordering that it would "permanently terminate" sooner if she fails to make adequate progress towards her certificate in electronics technology from Albuquerque Technical-Vocational Institute (T-VI); (2) the district court erred in failing to order spousal support during a ten-month gap between two orders requiring support; (3) the district court abused its discretion in determining the amount of her attorney's fees to be paid by Rabie; and (4) the district court abused its discretion in determining the amount of support. With respect to the first two contentions, we remand for further findings of fact and conclusions of law, because the district court's findings do not support the termination provisions of the supplemental judgment or the failure to order spousal support during the ten-month gap. Although Ogaki has not properly presented her third contention on appeal, the district court on remand can reconsider the award of attorney's fees. We reject Ogaki's fourth contention.

The district court dissolved the marriage pursuant to a partial decree filed in October 1988. The final decree ordered Rabie to pay Ogaki $535 a month for a period of two years from the date of the partial decree as temporary rehabilitative financial assistance. Although the court found both parties to be fit and proper parents, the court awarded Rabie primary physical custody of their two teen-age children; neither party was required to pay child support. Ogaki appealed the final decree to this Court. In an unpublished opinion filed April 10, 1990, we reversed the portion of the decree concerning spousal support and remanded to give Ogaki an opportunity to present evidence on the issue.

After the evidentiary hearing the district court made the following pertinent findings:

A. That [Ogaki] is approximately 45 years of age.

B. That [Ogaki's] overall health is generally good.

C. That [Ogaki] was born and raised in the Japanese culture and, prior to her marriage to [Rabie], Japanese was her first language.

D. That [Ogaki] is presently employed full-time by an Albuquerque bank, and she earns approximately $5.50 per hour, or $950.00 per month. In addition she has interest income of approximately $100.00 per month.

E. That, due to her problems with the English language and her lack of training, [Ogaki] does not presently possess marketable skills that would enable her to earn significantly more than she presently earns.

F. That [Rabie] is presently employed by the Los Alamos National Laboratory, and he earns $39.40 per hour, or $6,829.00 per month.

G. That the parties were married from September 18, 1970 until October 12, 1988; a period of just over eighteen years.

H. That each of the parties hereto received approximately $37,500.00 as their net share of their tangible community estate.

....

K. That [Rabie] obtained his B.S., his M.S. and his Ph.D. during the marriage of the parties.

....

N. That [Ogaki] has presented a letter to the Court stating that her present employer will not allow her to work part-time, only full-time.

O. That vocational testing has indicated that [Ogaki] is qualified for and suited for obtaining an Electronics Technology Certificate from the New Mexico Technical-Vocational Institute.

P. That if [Ogaki] is required to work full-time, approximately 40 hours a week, it would be unreasonable to require her to take more than six hours per trimester at T-VI.

Q. That, as of the [sic] May 23, 1991, [Ogaki] will need approximately 70 additional credit hours to obtain an Electronics Technology Certificate from T-VI. R. That, based on [Ogaki's] monthly expenses as provided to the Court, [Ogaki] is in need of financial assistance to be able to work full-time and attend T-VI half-time until she obtains her certificate.

....

V. That during the eighteen year marriage of the parties [Ogaki] dedicated herself to being a homemaker, and she did not acquire wage-earning training or skills.

The court found that Rabie was able to pay alimony in the amount of $650 per month and ordered him to pay Ogaki that amount for a maximum of 48 months, beginning September 1, 1991, conditioned upon Ogaki's continuing to work full time to the extent possible and continuing to make adequate progress toward her certificate. The supplemental judgment specifically provides that:

4. [Rabie's] continuing obligation to pay alimony to [Ogaki] shall permanently terminate upon the happening of any of the following:

A. [Ogaki] fails to continue to make continuous adequate progress toward her Certificate at T-VI;

B. [Ogaki] fails to enroll in at least six credit hours at T-VI each trimester that apply toward her Certificate;

C. [Ogaki] is failing the majority of her classes, but the payments will not automatically terminate if [Ogaki] fails or receives a grade below a "C" in one of her classes;

D. Either party hereto dies;

E. [Ogaki] remarries.

I. TERMINATION OF SPOUSAL SUPPORT

Ogaki argues that the district court erred in ordering that Rabie's obligation to pay support would terminate automatically in four years and would terminate sooner if she fails to make continuous adequate progress toward her certificate. She contends that these provisions ignore or disregard her needs. We agree.

Spousal support represents a substitute for or a continuation of the right to support that the spouse had during marriage. Brister v. Brister, 92 N.M. 711, 715, 594 P.2d 1167, 1171 (1979); Talley v. Talley, 115 N.M. 89, 92, 847 P.2d 323, 326 (Ct.App.1993). In determining whether to order spousal support, the district court is to consider: (1) the needs of the proposed recipient, (2) the proposed recipient's age, health, and means of self support; (3) the proposed payor's earning capacity and future earnings; (4) the duration of the marriage; and (5) the amount of property owned by the parties. See Michelson v. Michelson, 86 N.M. 107, 110, 520 P.2d 263, 266 (1974); Foutz v. Foutz, 110 N.M. 642, 798 P.2d 592 (Ct.App.1990). The actual need of the proposed recipient is a focal consideration in determining whether to order spousal support. See Brister, 92 N.M. at 715, 594 P.2d at 1171; Mattox v. Mattox, 105 N.M. 479, 486, 734 P.2d 259, 266 (Ct.App.1987). Whether to order spousal support, how much to order, and the duration of the order are within the sound discretion of the district court. See Bustos v. Bustos, 100 N.M. 556, 559, 673 P.2d 1289, 1292 (1983); Cox v. Cox, 108 N.M. 598, 602, 775 P.2d 1315, 1319 (Ct.App.1989).

Limited-duration support may be appropriate for some purposes, such as to assist the recipient through a brief transition period before reentering the job market or to allow the recipient to gain education or training to enhance earning capacity. See Deeds v. Deeds, 115 N.M. 192, 195, 848 P.2d 1119, 1122 (Ct.App.1993); Bustos v. Bustos (remanding for limited-duration support where recipient was destitute though ultimately employable); see also Seymour v. Seymour, 89 N.M. 752, 557 P.2d 1101 (1976) (remanding for reconsideration of amount of support and possible time limit on award where record showed that recipient had solid, varied job experience but was not looking for a job). The appropriateness of an order for limited-duration rehabilitative support depends on the circumstances of the particular case. For example, not all recipients will be able to increase their earning capacity or should even be expected to try to do so. See Russell v. Russell, 101 N.M. 648, 687 P.2d 83 (1984) (affirming award of indefinite-duration spousal support where recipient was 55, with limited job skills and serious medical problems); Dunning v. Dunning, 104 N.M. 296, 720 P.2d 1237 (Ct.App.1985) (affirming district court's refusal to modify indefinite-duration spousal support where recipient, despite good faith efforts to improve earning capacity, had not yet been able to do so), rev'd in part on other grounds, 104 N.M. 295, 720 P.2d 1236 (1986); Lewis v. Lewis, 106 N.M. 105, 115-16, 739 P.2d 974, 984-85 (Ct.App.1987) (observing that awards of limited-duration support have generally involved younger recipients with substantial job skills and relatively short marriages; holding that a 62-year-old recipient who had been married to the payor for nearly forty years, whose marital role was primarily that of a homemaker, and whose spouse is well able to afford alimony, has no obligation to "rehabilitate" herself).

Turning to the present case, we first note that we accept the facts as found by the district court. Ogaki has failed to challenge properly the findings of the district court, see Martinez v. Southwest Landfills, 115 N.M. 181, 184-86, 848 P.2d 1108, 1111-13 (Ct.App.1993), so our review is limited to consideration of whether those findings support the judgment. We hold that the findings do not justify the termination provisions in the award of support to Ogaki.

The district court's conclusions of law indicate that the sole purpose of the award was rehabilitation. Conclusions 2, 3, 4, 5, and 6 state, in pertinent part:

2. ... [Ogaki] has demonstrated a need for financial assistance from [Rabie] to enable her to obtain marketable wage-earning skills.

3. Alimony should be viewed as a means of allowing a divorced spouse to gain personal independence by helping the person disadvantaged by the marriage and the...