Allen v. Allen

554 P.2d 393, 1976 Alas. LEXIS 332

• Court: Alaska Supreme Court
• Decided: August 12, 1976
• Docket: 2453
• Status: Published

Opinions

OPINION

BURKE, Justice.

This is an appeal from the judgment of the superior court in an action for divorce. Appellant Henry Allen contends that the court’s division of the parties’ property was clearly unjust.

Henry Allen and Margaret Allen were married for eight years. At the time of their divorce, Mr. Allen was 38 years of age and Mrs. Allen was 42. There were no children born of the márriage, but Mrs. Allen’s daughter by a previous marriage lived with the parties.

Both Mr. and Mrs. Allen were in good health ¹ and worked throughout the marriage. The record indicates that Mrs. Allen’s income went primarily to meet joint expenses and investments, while Mr. Allen’s income was devoted largely to' the purchase of electronic equipment and for travel expenses which were of no direct benefit to Mrs. Allen.²

The judgment awarded to Mrs. Allen:

1. One-half of the paid-in equity in two lots and the family home situated thereon worth $14,108.75.

2. A life estate in the real property, terminable upon her remarriage or at such time as she ceases to use the family home as her residence.

3. Household furnishings and effects, worth $2,682.00.

4. Her personal belongings and jewelry.

5. A cash settlement of $5,000.00, payable in monthly installments of $175.00 per month.

Mr. Allen was awarded:

1. One-half of the paid-in equity in the family home and lots valued at $14,108.75.

2. Electronic equipment and a van valued at $10,000.00.

3. One 1973 Cadillac automobile, valued at $4,600.00 with an owned equity of $826.-85.

4. His personal belongings and household furniture worth $2,447.00.

At the time of the divorce, Mrs. Allen was employed as manager of Avis Rent-A-Car in Fairbanks, Alaska, earning a salary of $1,200.00 per month. Her net monthly income, from her work, was $904.00. Her salary was expected to increase to $1,300.-00 per month by January 1, 1975. In addition to her salary, Mrs. Allen receives $62.50 per month, from her former spouse, for the support of her teenage daughter.

Mr. Allen was employed as an operation’s controller by Bendix Field Engineering Corporation, receiving a net monthly salary of $1,600.00 to $1,700.00. He is required to pay $250.00 per month for the support of his minor children by a previous marriage. In addition to his salary, Mr. Allen enjoys substantial fringe benefits as a result of his membership in the Teamster’s Union.

During their marriage the parties accumulated various debts and obligations. Under the terms of the judgment Mrs. Allen was made responsible for payment of the following:

1. Nerland’s Home Furnishings — $936.-70, payable in monthly installments of $50.00.

2. Sears, Roebuck & Co. — $864.09, payable in monthly installments of $81.25.

3. Fairbanks Memorial Hospital — $51.-25.

4. Dr. Doolittle — $116.50.

5. Tanana Valley Clinic — $95.00.'

6. Dr. Johnson — $100.00.

Mrs. Allen was also- required to' pay her own fuel oil bills, electricity, and other utility charges on the residence, totalling approximately $190.00 per month.

According to the judgment, Mr. Allen was made responsible for payment of the following:

1. Bank Ameri-card account-payable in monthly installments of $35.00.

2. Publishing Co. — $71.20.

3. Balance owed on 1973 Cadillac— payable in monthly installments of $174.05.

4. Mortgage payment on house and lots — $571.00 per month.

Mr. Allen was also- made responsible for major repairs to the family home, with a proviso that no major repairs or capital improvements be made without his prior approval.

The legislature has given the superior court broad discretion in dividing the property of the parties to a divorce action.³ As recently noted in Courtney v. Courtney, 542 P.2d 164, 169 (Alaska 1975):

We have repeatedly stated that a judicial division of property is left by the statute to the broad discretion of the trial court and will not be disturbed on appeal unless an abuse of discretion is shown. The aggrieved party must show that the property division is clearly unjust. (footnote omitted)

Appellant first argues that the superior court, by its decree, created a “hybrid” tenancy in common and landlord-tenant relationship that may lead to continuing conflict between the parties and additional litigation. Because of this possibility of future dispute, he contends that the judgment is clearly unjust. We find such argument to be without merit. The mere possibility of such difficulty is not sufficient reason for us to disturb the superior court’s exercise of its discretion.

Appellant next argues that by awarding appellee a life estate in the real property, and requiring appellant to pay the mortgage payments, the court, in essence, awarded alimony to Mrs. Allen, and that such an award was clearly unjust in light of the evidence. Again we find appellant’s argument to be without merit. First, we view that portion of the decree as part and parcel of the court’s effort to make a reasonable division of the parties’ property and the responsibility for the various obligations that they had acquired, and not alimony. Second, considering Mrs. Allen’s need for a home for herself and her daughter, and the fact that Mr. Allen will receive the benefit of any future appreciation and growth of his equity in the property, we fail to discern the basis for appellant’s claim that the result was clearly unjust.

Appellant next argues that the judgment has imposed an impossible financial burden on him. Of course, all divisions of property are likely to result in some financial burden. Our task is to determine whether in this case the judge abused his discretion by imposing a financial burden which is “clearly unjust.” Courtney v. Courtney, supra. Appellant must demonstrate such injustice to cause us to reverse a decision by the trial court. Mr. Allen is certainly in a position to alleviate his monthly payments by refinancing or liquidating assets, such as the van and electronic equipment, or by trading down to a less expensive vehicle than his Cadillac. It is not unreasonable to expect a party to a divorce to have to reorganize financially, at least on a short term basis. While the result in this case may be harsh, as between the parties we cannot say that it is clearly unjust.

One of the factors cited by the trial judge in support of his division of the parties’ property was the consideration that appellant “should have the benefit of any appreciation in the [real] property.” Mr. Allen argues that the superior court, by so doing, engaged in mere speculation, because there was no evidence relating to any future appreciation in the value or equity of that asset. It would seem logical to assume that as Mr. Allen continues to make payments on the property, his equity will increase. Equally obvious is the fact that if the property appreciates in value, Mr. Allen will and should benefit by such increase since he is required to make the future mortgage payments. It does not appear that the superior court necessarily assumed that there would be future appreciation, only that Mr. Allen should enjoy the benefit of any increase in value that might occur. Thus, we see no merit in appellant’s argument.

Finally, appellant argues that the superior court erred in not simply ordering a sale of the real property, and an equal division of the proceeds, thereby relieving each of the parties of a serious financial hardship. While a sale might have certain advantages, we cannot say that they are so substantial as to make the alternative plan selected by the trial court clearly unjust.⁴

In light of the broad discretion vested in the trial court, and our standard of review in such matters, we have no alternative but to affirm the judgment of the court below.

AFFIRMED.

CONNOR, J., dissented.

1 . Although in 1970 Mrs. Allen had a total hip replacement, the operation was a success.

2 . With Mrs. Allen’s help, Mr. Allen spent approximately $34,000 on electronic equipment and about $8,000 in cash and time contributions to political organizations. He made a number of trips, at his own expense, on political business. Furthermore, Mrs. Allen contributed various cash settlements that she received for personal injuries that she had suffered to the family account, while Mr. Allen withheld, for his own use, a substantial amount that he received as severance pay from an employer.

3 . AS 09.65.210(6) states that the court has power to provide:

for the division between the parties of their property, whether joint or separate, acquired only during coverture, in the manner as may be just, and without regard to which of the parties is in fault; however, the court, in making the division, may invade the property of either spouse acquired before marriage when the balancing of the equities between the parties requires it; and to accomplish this end the judgment may require that one or both of the parties assign, deliver, or convey any of his or her real or personal property to the other party;

4 . In deciding not to order a sale of the family home, the trial judge considered, among other things, the difficulty that Mrs. Allen might have in securing replacement housing, stating:

[A]nother reason why I didn’t want the house sold [is] because even with fourteen thousand dollars, it’s doubtful she’s going to get a home of her own on the present market.

In our view, the availability of such housing was a factor properly considered by the trial judge.