Muller v. Muller
Annotate this Case
Muller v. Muller
1992 WY 123
838 P.2d 198
Case Number: 92-53
Decided: 09/28/1992
Supreme Court of Wyoming
Gary MULLER, Appellant (Plaintiff),
v.
Pauline
MULLER, Appellee (Defendant).
Appeal from District Court, SheridanCounty, Hunter Patrick,
J.
Fred R.
Dollison of Shoumaker and Dollison, Sheridan, for appellant.
Sharon
L. Kinnison of Holstedt & Kinnison, Sheridan, for appellee.
Before
MACY, C.J., and THOMAS, CARDINE,
URBIGKIT* and GOLDEN,
JJ.
* Chief Justice at time of oral
argument.
URBIGKIT,
Justice.
[¶1.] Economic disaster
attended these litigants' construction company, domestic disharmony followed in
their marriage and, finally, the wife became seriously ill and in declining
health. The trial court's effort to resolve these difficulties by an award of
$100 per month alimony has dissatisfied the husband. He now
appeals.
[¶2.] We affirm the trial
court.
[¶3.] Gary Muller, appellant,
and Pauline Muller, appellee, had been married for about sixteen years when they
ended their relationship by a divorce. Three unpleasant occurrences combined to
create their marital troubles. The construction business which they had operated
fell into severe financial difficulty, Pauline developed disabling health
problems, and Gary was accused of developing alternative
romantic interests.
[¶4.] Although not desired by
the husband, the trial court, in an effort to divide property and address debts,
directed the general sale of their mutual assets for application to the business
indebtedness, including federal withholding taxes from which bankruptcy would
provide no relief. Although the husband's dissatisfaction developed from the
trial court's direction to sell the business assets, this appeal only presents a
simple challenge contesting the alimony award to Pauline of $100 per
month.
[¶5.] The need for or
propriety of the alimony award for Pauline is not an issue, leaving only for our
resolution the even more confined issue: Did the trial court award alimony when
the husband had no demonstrable capacity to pay? We resolve this appeal by
finding absence of abuse of exercised discretion. Clearly the trial court
considered the total record. Within the conflicting evidence, the trial court
was entitled to find that the husband, after sixteen years of marriage and with
his wife in ill health, could obtain adequate income to make a modest alimony
contribution of $100 per month.
[¶6.] Certainties attend few
human accomplishments and the trial court, in divorce decisions, is entitled to
recognize reasonable possibilities for decisional purposes. Young v. Young, 472 P.2d 784, 786 (Wyo. 1970). The trial court was not confined
to the husband's unemployment or potential future unemployment, but was
justified in considering employment expectancy reasonably created by his
experience, capability and physical ability. Certainly with the disabling health
condition of Pauline and her budget "needs" of $1,000 per month, a $100 alimony
award could not be considered factually excessive.
[¶7.] Although alimony may
not be favored under Wyoming case law, Broadhead v. Broadhead, 737 P.2d 731
(Wyo. 1987); Hendrickson v. Hendrickson, 583 P.2d 1265, 1269 (Wyo. 1978),
McClintock dissenting; see also Grosskopf v. Grosskopf, 677 P.2d 814, 821 (Wyo.
1984) and Young v. Young, 472 P.2d 784 (Wyo. 1970), it is specifically
authorized by statute and recognized to be appropriate under the proper
circumstances. Wyo. Stat. § 20-2-114 (1987) provides:
In granting a divorce,
the court shall make such disposition of the property of the parties as appears
just and equitable, having regard for the respective merits of the parties and
the condition in which they will be left by the divorce, the party through whom
the property was acquired and the burdens imposed upon the property for the
benefit of either party and children. The court may decree to either party
reasonable alimony out of the estate of the other having regard for the other's
ability and may order so much of the other's real estate or the rents and
profits thereof as is necessary be assigned and set out to either party for
life, or may decree a specific sum be paid by either party.[1]
[¶8.] In considering alimony
in a wide variety of factual circumstances, see Sellers v. Sellers, 775 P.2d 1029 (Wyo. 1989); Grosskopf, 677 P.2d 814; Hendrickson, 583 P.2d 1265; Young,
472 P.2d 784; and Lonabaugh v. Lonabaugh, 46 Wyo. 23, 22 P.2d 199 (1933), this
court has stated that in making a just and equitable settlement, judicial
discretion is not a reward or punishment but simply fairness. Storm v. Storm,
470 P.2d 367 (Wyo. 1970); Beckle v. Beckle, 452 P.2d 205 (Wyo.
1969).
[¶9.] One procedural
principle, followed by two substantive concepts, has found consistent
application in Wyoming cases which now direct affirmation of
this decision. First, the decision for any award of alimony is vested within the
responsible discretion of the trial court. Underkofler v. Underkofler, 834 P.2d 1140 (Wyo. 1992); Kennedy v. Kennedy, 761 P.2d 995 (Wyo.
1988); Hendrickson, 583 P.2d 1265; and Young, 472 P.2d 784. In general
substantive requirement, we are directed by statute and case law to find a
reasonable ability to pay. Sellers, 775 P.2d 1029; Hendrickson, 583 P.2d 1265;
Young, 472 P.2d 784; Lonabaugh, 22 P.2d 199. See also Dice v. Dice, 742 P.2d 205
(Wyo.
1987).
[¶10.] The third concept, as a component of the
second, provides the specific adjudicatory challenge of this appeal. It is
whether a reasonable expectancy can be used with the test of demonstrated
ability to pay to meet the required fairness and equity end result. This
specific issue has not previously garnered our attention in any designated
appellate issue, although the generic understanding of the requirement to pay
criteria has been regularly enforced. See, e.g., Hendrickson, 583 P.2d 1265;
Young, 472 P.2d 784; Ramsey v. Ramsey, 76 Wyo. 188, 301 P.2d 377 (1956); and Lonabaugh,
22 P.2d 199. In Ramsey, the property settlement (alimony) lump sum award was
modified on appeal into periodic payments to meet an ability to pay standard for
the husband. In Warren v. Warren, 361 P.2d 525, 528 (Wyo. 1961), what was constituted in the decree
to be alimony was reconstructed by this court into part of the property
settlement for a result defined to be "just and
equitable."
[¶11.] The closest this court came to any
reasonable expectancy analysis was provided in a property division application.
In Dice, 742 P.2d 205 and Broadhead, 737 P.2d 731, we considered division of
retirement programs not matured at the time of the divorce. In Storm, 470 P.2d 367, the settlement in lieu of alimony included a future inheritance. We
said:
Inasmuch as the
divorce in this case was sought several months before defendant's expectancy
matured; and inasmuch as trial was had and the decision of the court announced
before defendant inherited a half interest in his father's ranch, the
inheritance must, in equity, be considered the same as future property
regardless of the exact date of the entry of the final decree. It would not be
"just and equitable" to consider such property a part of the marital estate and
in the hands of the court for disposition.
In speaking of future
property, we are referring to a prospective expectancy of an estate which may
come into being in the future as distinguished from future benefits to be
derived from an estate already in existence.
Id. at
370.
[¶12.] That concept was further advanced in Kane
v. Kane, 577 P.2d 172, 175 (Wyo. 1978):
[W]e do
not question the contention of the defendant that whether a property settlement
is just and equitable should be determined as of the date the decree was
entered, but feel compelled to note that the disposition of property of the
parties is an equitable function of the court, Storm v. Storm, Wyo., 470 P.2d 367 (1970), and that while a mere expectancy cannot be the subject of division,
a distinction can and must be made between an estate that may come into
existence in the future and future benefits to be derived from an estate already
in existence. Here, the Montana ranch is owned by the parties. What
may happen to it in the future may be somewhat uncertain, but the trial court
was required to deal with it as a presently existing and material asset of the
marriage.
[¶13.] It is logical to extract from that
concept an equivalent rule. We approve the reasonable expectancy provided by a
determinable earning capacity to sustain the minimal alimony provided here. The
guideline was established by Justice Tobriner, some thirty-one years ago, in a
California
appellate decision:
Instead of narrowly
circumscribing the trial court to a consideration of the single aspect of the
husband's current earnings, the cases wisely permit an examination of the total
situation. * * *
The argument that at
the time of the hearing the husband's actual earnings failed to equal the
awarded amount, and that the order was therefore arbitrary, does not strike a
new note. It has been heard many times before. Yet the cases have frequently and
uniformly held that the court may base its decision on the husband's ability to
earn, rather than his current earnings. If the court were limited to the
momentary current earnings of a husband, particularly one who was engaged in a
seasonal industry or whose earnings had widely fluctuated, the court would get a
distorted view of his financial potential.
Meagher
v. Meagher, 190 Cal. App. 2d 62, 11 Cal. Rptr. 650, 651 (1961); see also In re
Marriage of Flaherty, 31 Cal. 3d 637, 183 Cal.Rptr 508, 511-12, 646 P.2d 179,
182-83 (1982).
[¶14.] In one text, the rule is
stated:
Earning capacity and other potential income
- of obligor spouse.
In the determination
of alimony, consideration should be given to the obligor spouse's earning
capacity, future prospects, and probable acquisition of wealth from any source
whatever.
24
Am.Jur.2d Divorce and Separation § 662 (1983). This rule has a seasoned history
and application. See, e.g., Smyth v. Smyth, 198 Okla. 478, 179 P.2d 920, 923 (1947) and Hanks
v. Hanks, 296 N.W.2d 523 (S.D. 1980); cf. Straub v. Straub, 381 N.W.2d 260 (S.D.
1986); see also Hickland v. Hickland, 39 N.Y.2d 1, 382 N YS.2d 475, 346 N.E.2d 243 (1976).
[¶15.] The consistent perspective has also been
applied to the earning capacity of the recipient spouse to come within, what we
characterize for this appeal, a reasonable expectancy of earning capacity. In re
Marriage of Rolfe, 216 Mont. 39, 699 P.2d 79
(1985); Marriage of Cromwell, 180 Mont. 40, 588 P.2d 1010 (1979). Compare Ross
v. Ross, 103 Idaho 406, 648 P.2d 1119 (1982), where a large
alimony award was reversed in view of the ex-wife's capacity to go back to
fruitful employment.
[¶16.] Historical earning power can be fairly
considered in awarding alimony. Olson v. Olson, 704 P.2d 564, 566 (Utah 1985). Similar
consideration was given to a future expectancy in Matter of Marriage of Klock,
83 Or. App. 656, 733 P.2d 65 (1987), where both present unemployment
compensation and future normal craft trade income were considered. A foreseeable
circumstance case, in reverse application, resulting in award of only nominal
alimony was found in Standage v. Standage, 147 Ariz. 473, 711 P.2d 612 (App.
1985). See similarly, with the same one dollar alimony, Underkofler, 834 P.2d 1140.
[¶17.] Present unemployment of the obligor
spouse is not preclusive for alimony responsibility. Russell v. Russell, 101
N.M. 648, 687 P.2d 83 (1984); see also Matter of Marriage of Klock, 733 P.2d 65.
A realistic business income expectancy test, although not defined in those
words, was applied in Jones v. Jones, 700 P.2d 1072 (Utah 1985), where the
court reversed the alimony award as inequitably inadequate. Adequate business
income to pay alimony to a sick ex-wife was established despite claimed
impossibility by In re Marriage of Yadon, 216 Mont. 59, 699 P.2d 75 (1985). The husband was
awarded the business in a divorce property settlement and its expectant income
justified a realistic consideration of alimony for the divorced
spouse.
[¶18.] Within the composite perspective of these
cases, we can find appropriate compliance with the trial court's exercise of
discretion. No abuse of discretion resulted from the trial court's consideration
of circumstances of age, working capacity, and period of marriage. When weighed
in conjunction with the significantly distressed status of the dispossessed
wife, justification existed for the $100 monthly alimony
award.
[¶19.] Affirmed.
FOOTNOTES
1 This court
has considered a fair number of cases where alimony was granted, denied or
otherwise considered. In addition to those cited above, these appeals, many of
which were cited in present briefing, would generally include: Moore v. Moore,
33 Wyo. 230, 237 P. 235 (1925); Lonabaugh v. Lonabaugh, 46 Wyo. 23, 22 P.2d 199
(1933); Ramsey v. Ramsey, 76 Wyo. 188, 301 P.2d 377 (1956); Warren v. Warren,
361 P.2d 525 (Wyo. 1961); Martens v. Martens, 364 P.2d 995 (Wyo. 1961);
Biggerstaff v. Biggerstaff, 443 P.2d 524 (Wyo. 1968); Beckle v. Beckle, 452 P.2d 205 (Wyo. 1969); Storm v. Storm, 470 P.2d 367 (Wyo. 1970); Piper v. Piper, 487 P.2d 1062 (Wyo. 1971); Paul v. Paul, 616 P.2d 707 (Wyo. 1980); Kennedy v.
Kennedy, 761 P.2d 995 (Wyo. 1988); Sellers v. Sellers, 775 P.2d 1029 (Wyo.
1989); Williams v. Williams, 817 P.2d 884 (Wyo. 1991). See also Underkofler v.
Underkofler, 834 P.2d 1140 (Wyo. 1992) (involving $1
alimony).
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