Foutz v. Foutz

798 P.2d 592, 110 N.M. 642
CourtNew Mexico Court of Appeals
DecidedAugust 16, 1990
Docket10625
StatusPublished
Cited by25 cases

This text of 798 P.2d 592 (Foutz v. Foutz) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Foutz v. Foutz, 798 P.2d 592, 110 N.M. 642 (N.M. Ct. App. 1990).

Opinion

OPINION

BIVINS, Chief Judge.

Husband appeals the Final Decree of Dissolution of Marriage and Property Settlement, challenging the division of community property, award of alimony, and assessment of wife’s attorney fees and costs. We vacate the final decree, other than the portion dissolving the marriage, and remand for further proceedings.

The trial court found that the parties had been married forty years and had raised seven children, all of whom are grown. Husband is a self-made businessman, Indian trader, and real estate developer. Wife has never worked outside the home and has no marketable job skills. She has minimum needs in excess of $2,600, without considering taxes and costs attributable to property awarded her. Husband has made gifts and other contributions to a paramour and her children. The parties to this action own no separate property. The total of the community property to be divided exceeds $2.5 million. After pooling certain assets to defray community debts, the court awarded wife community property with a value of $631,265 and husband community property with a value of $551,992. The trial court awarded wife alimony in the amount of $2,400 per month. It also awarded her attorney fees of $15,000 plus tax plus $3,795 in costs.

The first issue we address is whether the trial court’s findings of fact and conclusions of law are sufficient to enable this court to conduct a meaningful review. We hold they are not. We conclude that the findings fail to resolve the issues presented by the evidence at trial and do not support the conclusions reached.

The findings and conclusions entered in this case suggest some confusion about when an award of alimony is appropriate and what findings are necessary to support an award. For purposes of clarification, we will begin our discussion by indicating the factors to be considered and the findings that would be appropriate. In doing so, we do not intend to suggest how the trial court should decide a given issue.

We first examine the role of alimony in a community property state where each spouse, as an equal partner, is entitled to one-half of the marital earnings and gains. One might expect that, since each spouse shares equally, neither should be required to support the other after dissolution of the marriage. However, this attitude has been criticized as unreasonable because there may be a need for spousal support when there is little or no community property to divide. See W. de Funiak & M. Vaughn, Principles of Community Property § 133, at 329 (2d ed.1971). The legislature, by making provision for payment of alimony, see NMSA 1978, § 40-4-7(B)(l) (Repl. Pamp.1989), recognized that post-marital support may be justified “as under the circumstances of the case may seem just and proper.” It has been left to the courts to interpret under what circumstances alimony is just and proper.

A review of case law suggests that the court should first determine if there is a need for support. Weaver v. Weaver, 100 N.M. 165, 667 P.2d 970 (1983); Blister v. Brister, 92 N.M. 711, 594 P.2d 1167 (1979). Once need is determined, the court should decide whether the potential recipient has the means to support him or herself. Michelson v. Michelson, 86 N.M. 107, 520 P.2d 263 (1974). The potential receipient’s means may include present employment, future employment, or income from property. If consideration of the duration of the marriage, the recipient’s age and health, and her employment experience leads to a determination that she will be unable to support herself through employment, see Lewis v. Lewis, 106 N.M. 105, 739 P.2d 974 (Ct.App.1987), the court must still consider whether the property wife owns will produce sufficient income to fully or partially satisfy her need. See Weaver v. Weaver (error in trial court’s failure to consider income generated by wife’s inheritance); Brister v. Blister (court must consider all support received by wife, regardless of source, before determining alimony); Michelson v. Michelson (listing the amount of property owned by the parties as a factor in alimony determination); Mattox v. Mattox, 105 N.M. 479, 734 P.2d 259 (Ct.App.1987) (income produced by property may be considered in setting alimony).

Once it has been determined that alimony should be awarded, the court must also consider the ability of the supporting spouse to pay. The total circumstances of the supportings spouse as well as those of the recipient spouse must be considered so as to avoid imposing a hardship on the supporting spouse and to permit the recipient spouse to abdicate his or her responsibility for support and maintenance. Russell v. Russell, 101 N.M. 648, 687 P.2d 83 (1984).

The fact that a spouse may have taken a paramour is not a factor to consider. Under New Mexico law, alimony is not intended as a penalty and should not be used to punish. See Brister v. Blister. With these and other relevant facts, the trial court should determine whether alimony is to be awarded.

We repeat that, even if it be determined that the spouse qualifies for support, the community property and its potential for providing support should be examined and utilized before imposing support obligations on the other spouse. The same preference toward encouraging independence one from the other with respect to employable spouses holds true for the unemployable. Each needs to get on with his or her respective life, free of financial entanglements to the extent such is reasonably possible.

We are not suggesting some award in this case could not be justified if, for example, the trial court -chose to distribute most of the income-producing property to husband. See Ellsworth v. Ellsworth, 97 N.M. 133, 637 P.2d 564 (1981). The primary question is need. Once that is established, the means of fulfilling the need can be determined.

Community property should be divided equally, id., although it need not be divided with mathematical exactitude. See Bustos v. Gilroy, 106 N.M. 808, 751 P.2d 188 (Ct.App.1988). Proper apportionment of community property and debts depends on what is fair, considering all of the evidence with reference to the facts and circumstances of each case. Id.; see Ridgway v. Ridgway, 94 N.M. 345, 610 P.2d 749 (1980). “[T]here is no requirement that each party receive exactly the same dollar value as long as the community property is equally apportioned by a method of division best suited under the circumstances.” Id. at 346, 610 P.2d at 750.

While the award to one spouse of his or her attorney fees is discretionary, the discretion “must have been exercised with the purpose in mind of insuring the plaintiff an efficient preparation and presentation of her case.” Burnside v. Burnside, 85 N.M.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Burrell v. Shipton
New Mexico Court of Appeals, 2017
Miller v. Bank of America
2015 NMSC 022 (New Mexico Supreme Court, 2015)
Salazar v. Salazar
New Mexico Court of Appeals, 2012
Torres v. Torres
New Mexico Court of Appeals, 2012
Medina v. Medina
2006 NMCA 042 (New Mexico Court of Appeals, 2006)
Rhoades v. Rhoades
2004 NMCA 020 (New Mexico Court of Appeals, 2003)
Kruskal v. Moss
1998 NMCA 073 (New Mexico Court of Appeals, 1998)
Irwin v. Irwin
910 P.2d 342 (New Mexico Court of Appeals, 1995)
Gomez v. Gomez
895 P.2d 277 (New Mexico Court of Appeals, 1995)
Lebeck v. Lebeck
881 P.2d 727 (New Mexico Court of Appeals, 1994)
Roberts v. Wright
871 P.2d 390 (New Mexico Court of Appeals, 1994)
Trujillo v. City of Albuquerque
866 P.2d 368 (New Mexico Court of Appeals, 1993)
Rabie v. Ogaki
860 P.2d 785 (New Mexico Court of Appeals, 1993)
Deeds v. Deeds
848 P.2d 1119 (New Mexico Court of Appeals, 1993)
Talley v. Talley
847 P.2d 323 (New Mexico Court of Appeals, 1993)
Ruggles v. Ruggles
834 P.2d 940 (New Mexico Court of Appeals, 1992)
Toynbee v. Mimbres Memorial Nursing Home
833 P.2d 1204 (New Mexico Court of Appeals, 1992)
Lucero v. Yellow Freight System, Inc.
818 P.2d 863 (New Mexico Court of Appeals, 1991)
Hakkila v. Hakkila
812 P.2d 1320 (New Mexico Court of Appeals, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
798 P.2d 592, 110 N.M. 642, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foutz-v-foutz-nmctapp-1990.