Russman v. Russman, 82-580

• Decision Date: 02 March 1984
• Docket Number: No. 82-580,82-580
• Parties: Adele G. RUSSMAN v. Richard L. RUSSMAN.
• Court: New Hampshire Supreme Court

Page 1017

474 A.2d 1017

124 N.H. 593

Adele G. RUSSMAN v. Richard L. RUSSMAN.

No. 82-580.

Supreme Court of New Hampshire.

March 2, 1984.

McSwiney, Jones & Semple, Concord (Paul C. Semple, on the brief and Elaine L. Clark, Concord, on the brief and orally), for plaintiff.

Brown & Randlett, Exeter (G. Page Brown, Exeter, on the brief and orally), for defendant.

PER CURIAM.

The plaintiff, Adele G. Russman, appeals from a decree awarding her support for herself and her children, asserting that the amount of the award is insufficient. We agree and remand for reconsideration in the light of this opinion.

The plaintiff filed for divorce in 1981, after nine years of marriage. After a hearing, the Master (Gary R. Cassavechia, Esq.) recommended that the divorce be granted. The master's recommendations as to the divorce, custody of the children, support award and property division were approved by the Superior Court (Bean, J.) on September 29, 1982.

The parties were awarded joint legal and joint physical custody of their two minor children, with the children alternating weeks with each party. The plaintiff was awarded $500 per month "for her support and the support of the parties' minor children."

The statute authorizing the award of alimony, RSA 458:19, provides that the court may "order [a party] to pay such sum of money, as may be deemed just...." We have stated that "[i]t is essential that the amount of alimony awarded be sufficient to cover the wife's needs, within the limits of the husband's ability to pay." Murphy v. Murphy, 116 N.H. 672, 675, 366 A.2d 479, 482 (1976).

With respect to child support, RSA 458:17, I provides that the court "may order a reasonable provision for their support and education." "In setting support, the court will balance the needs of the children against the supporting parent's ability to pay." C. Douglas, 3 New Hampshire Practice, Family Law § 301 (1982); see Fortuna v. Fortuna, 103 N.H. 547, 549-50, 176 A.2d 708, 710 (1961).

The record before us indicates that during their marriage the parties enjoyed a very comfortable standard of living. The defendant is an attorney. The plaintiff is a school teacher who, by mutual agreement, remained at home to care for the children, once the parties began their family. They acquired a home, several automobiles, and several parcels of real estate, including an office for the defendant's law practice with additional rental income, and were able to set aside funds in individual Keogh plans and IRA accounts.

The plaintiff's financial affidavit estimates her monthly expenses as approximately $2,150. After the parties separated, the plaintiff returned to work as a school teacher, and has a net income per month of approximately $636.

The defendant's support affidavit estimates his monthly expenses as approximately $2,700 and lists his average monthly net income as $2,515. His 1981 income tax return, however, reflected a net income per month of approximately $3,800. His 1980 income tax return reflected a net income per month of approximately $5,000.

The disparity in the amounts of their income is striking. The defendant's average net yearly income for 1980 and 1981 was approximately $53,400. The plaintiff, on the other hand, now has a net annual salary of approximately $7,600. Without considering the federal income tax consequences of the support award, the $500 monthly support payment increases the plaintiff's income to approximately $13,600 per year. Even when the plaintiff's salary is supplemented with this award, she has a shortfall of more than $1,000 per month when her income is compared with her claimed expenses. Moreover, the parties share physical custody of the children on an equal basis, with each parent having the children one-half of the time. The record indicates, however, that the defendant considers expenses for the children's clothing school lunches, and kindergarten tuition of $1,300 for the youngest child to be the sole responsibility of the plaintiff.

We will not set aside a master's determination of an appropriate alimony and/or support award unless an abuse of discretion is shown. Marsh v. Marsh, 123 N.H. 448, 451, 462 A.2d 126, 128 (1983). On the evidence before him, the master in the present case could not reasonably have found that the $500 award was just or sufficient to meet the needs of the plaintiff and the children, in light of the relatively high standard of living enjoyed by the parties during the marriage and the defendant's ability to pay. We therefore conclude that the master abused his discretion.

In Parker v. Parker, 122 N.H. 658, 448 A.2d 414 (1982), we declined to rule that the inability to meet expenses with present income, as supplemented by an award of alimony and child support, necessarily...