Thomas v. Thomas

• Decision Date: 20 July 1984
• Docket Number: CA-CIV
• Citation: 142 Ariz. 386,690 P.2d 105
• Parties: In re the Marriage of Joanne P. THOMAS, Petitioner-Appellee, v. Gerald E. THOMAS, Respondent-Appellant. 16385.
• Court: Arizona Court of Appeals

Page 105

690 P.2d 105

142 Ariz. 386

In re the Marriage of Joanne P. THOMAS, Petitioner-Appellee, v. Gerald E. THOMAS, Respondent-Appellant.

1 CA-CIV 6385.

Court of Appeals of Arizona Division 1, Department A.

July 20, 1984.

Tilker, Ranger & Nearhood by James R. Nearhood, Scottsdale, for petitioner-appellee

Norton, Burke, Berry & French by John R. Fox, Phoenix, for respondent-appellant.

OPINION

GRANT, Judge.

This is a domestic relations case in which we are asked to consider the following issues: (1) Was there an abuse of discretion in the award of spousal maintenance to the wife? (2) Was there an abuse of discretion in the distribution of an account at E.F. Hutton? and (3) Was there an abuse of discretion in awarding the wife attorney's fees and costs in the trial court?

The parties had been married for 32 years. Their five children had all reached the age of majority by the time of trial. The wife was 56 years old and the husband was 59 years old. The parties had separated prior to trial and the wife had established residence in San Diego, California. Although the wife had never been gainfully employed outside the home during the marriage, she had secured a temporary part-time job as a hostess in a restaurant three weeks prior to trial. She worked 20 hours a week earning approximately $3.75 an hour. She had no health problems. The husband, on the other hand, had been employed by the Campbell Soup Company during most of the marriage. He had risen to the position of national director of marketing for frozen foods. However, in 1970 he had suffered a major heart attack which caused him to leave Campbell Soup Company and become an independent consultant.

The parties moved to Arizona in 1977. Between 1970 and 1977 the husband had been an independent consultant for businesses and art galleries in the East. From 1978 through 1980 the husband consulted with a company called Western American Heritage Prints in Arizona. At the same time he was winding down his consultation with companies in the East. He also began working with a small Arizona company known as Ventures West. According to the husband, he was provided office space, access to secretarial help, office supplies, telephone answering service, and medical insurance for the family as the only compensation for his services to this company. In 1980 the husband underwent a triple bypass operation. Apparently during the years 1980 and 1981 the parties' living expenses were met primarily by the liquidation of community assets.

At the time of trial the parties had accumulated approximately $307,000 in an account at the Arizona Bank. They also had collected certain works of art estimated by the husband to be worth approximately $40,000. Each had a late model automobile which was fully paid for. In the husband's affidavit filed at the time of trial the husband listed his anticipated expenses as approximately $1,376 per month. The wife in her affidavit filed at the time of trial stated that her monthly living expenses were $1,725.

The trial judge divided the community assets between the parties including $23,521 which was in an account at E.F. Hutton and which the husband claimed as his separate property. The trial judge also found that the wife lacked sufficient property, including property apportioned to her, to provide for her reasonable needs and that she temporarily lacked earning ability in the labor market adequate to support herself. He therefore awarded her spousal maintenance in the sum of $1,000 a month for a period of three years. The court also ordered the husband to pay to the wife for attorney's fees and costs the sum of $7,500.

I. SPOUSAL MAINTENANCE

The husband claims that the wife does not meet the statutory requirements for spousal maintenance set forth in A.R.S. § 25-319(A) and therefore the trial court's award was impermissible. See Neal v. Neal, 116 Ariz. 590, 570 P.2d 758 (1977). The husband claims that the wife had sufficient property apportioned to her to provide for her reasonable needs.

Pursuant to the property award, the wife is to receive $153,500 from the Arizona Bank account, her personal jewelry which the husband estimates to be worth $11,000, works of art which the husband estimates to be worth $25,000, and one-half of the husband's pension in the amount of approximately $111 per month. In addition she was awarded approximately $11,760 from the account with E.F. Hutton. The wife's expert witness, Mr. David L. Markstein, testified that at the minimum rate of return the wife could receive a yearly income in excess of $21,500 ($1,800 per month) based on a principal of $148,858. Therefore, it is argued that, even considering some tax liability, she would apparently have sufficient assets, which, when properly invested, would produce sufficient income to meet her reasonable expenses. Therefore, claims the husband, it was an abuse of the trial court's discretion to award her spousal maintenance of $1,000 per month for three years. He claims that such an award cannot be supported by the evidence.

The evidence showed that while the wife enjoyed good health, the husband had for many years suffered from coronary artery disease. This disease had apparently become a major factor in his ability to earn income. He claimed that his only source for the payment of the spousal maintenance would be out of the property apportioned to him at the trial. Therefore, he asserted that he was just as dependent as his wife on the financial assets of the community. He alleges that the financial resources of the parties were sufficient to provide for both parties' reasonable needs. Each of the parties he asserts, is free to seek additional income through employment if either so desires.

The husband also claims that the length of spousal maintenance was not supported by evidence presented at trial. The wife gave no testimony at trial of the amount of time necessary to acquire sufficient education or training to enable her to find appropriate employment. Indeed she did not indicate any specific plan of education or training.

The wife responds by stating she became confused when testifying at trial about the amount of her estimated monthly expenses. The record supports this. She claims her expenses are higher than she originally stated in her spousal affidavit. She also states that the husband does not take into account the income tax consequences associated with the funds she received as the result of the dissolution and the income she can be expected to derive therefrom. The $307,000 in the Arizona Bank was money derived from the sale of the parties' residence. The parties realized a net profit of $287,000 on this sale. The evidence was that this sale resulted in a capital gain to the parties of approximately $160,000. The remaining balance in the joint account of $20,000 was accrued interest. For income tax purposes the wife claims she is obligated to pay one-half of the capital gains tax on $160,000 and income tax on one-half of the accrued interest ($10,000). All of this she claims would leave her with a net account of approximately $140,000. The highest estimate of her monthly expenses was approximately $1,820 plus $100 for medical insurance for a total of $1,920. Her total annual income would come to $26,688 ¹ which equals $2,224 per month before income taxes. Added to the $2,224 is $111 per month from the retirement pension for a total of $2,335 a month before taxes. Estimates of her after tax income were, however, under $1,920. Therefore she claims that property awarded her is not sufficient to meet her monthly expenses. Additionally, she states that should her income remain constant, inflation would cause the gap between her income and her monthly expenses to widen to a deficit of approximately $540 per month by October, 1984, the date that spousal maintenance terminates. The wife also claims that given her age of 56 years and her lack of previous employment experience it will be difficult to obtain a better employment situation than she currently has. See Mori v. Mori, 124 Ariz. 193, 603 P.2d 85 (1979).

The issue then is whether the evidence supports an award of spousal maintenance in view of the statutory prerequisites. An award of spousal maintenance will not be disturbed if there is any reasonable evidence to support the judgment of the trial court. Nelson v. Nelson, 114 Ariz. 369, 560 P.2d 1276 (App.1977). In reviewing a decision after trial to the court, the evidence must be "taken in the strongest manner in favor of the appellee, and if there is any reasonable evidence to support the judgment of the lower court, it will be sustained." Rossi v. Stewart, 90 Ariz. 207, 209, 367 P.2d 242, 244 (1961). An appellate court may "infer from any judgment the findings necessary to sustain it if such additional findings do not conflict with express findings and are reasonably supported by the evidence." Wippman v. Rowe, 24 Ariz.App. 522, 525, 540 P.2d 141, 144 (1975). See also Hueg v. Sunburst Farms, 122 Ariz. 284, 594 P.2d 538 (App.1979).

In analyzing an award of spousal maintenance we apply a two step analysis. First, this court must determine from the record whether the spouse awarded maintenance meets the statutory requirements for maintenance set out in A.R.S. § 25-319(A). Second, we must review the amount and duration of the award to determine whether the trial court properly considered the factors listed in A.R.S. § 25-319(B).

The record reasonably supports the conclusion that the wife lacks sufficient property to provide for her reasonable needs and is unable to support herself fully in the appropriate manner. The wife estimated her aggregate reasonable monthly needs to be $1,920. Neither the husband, nor the dissent seriously question this amount.

The other component necessary for eligibility for spousal maintenance is inability to support one's self through employment and/or from apportioned property. A.R.S. § 25-319(A). The...