In Re the Marriage of Hinkston

653 P.2d 49, 133 Ariz. 592, 1982 Ariz. App. LEXIS 537
CourtCourt of Appeals of Arizona
DecidedOctober 12, 1982
Docket1 CA-CIV 5193
StatusPublished
Cited by23 cases

This text of 653 P.2d 49 (In Re the Marriage of Hinkston) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re the Marriage of Hinkston, 653 P.2d 49, 133 Ariz. 592, 1982 Ariz. App. LEXIS 537 (Ark. Ct. App. 1982).

Opinions

OPINION

JACOBSON, Presiding Judge.

In this appeal involving a dissolution proceeding, we are asked to determine if the lower court abused its discretion concerning the amount of spousal maintenance awarded to appellee and the award of custody of the parties’ son to an adult brother. We affirm in part and reverse in part.

Don Hinkston, appellant, and Leola Hink-ston, appellee, were married in 1952. On September 25, 1979, a decree of dissolution was entered wherein the lower court ordered that the parties’ home should be sold and the net proceeds be distributed fifty-five percent in favor of appellee (approximately $10,400.00) and forty-five percent in favor of appellant (approximately $8,500.00). Additionally, appellant was given a 1967 automobile valued at $500.00, a 1960 motorcycle valued at $100.00, a tent trailer worth approximately $25.00, and a mobile home which had zero equity. The decree ordered appellant to pay spousal maintenance in the amount of $275.00 per month for as long as appellee is unemployed, and $125.00 per month if appellee became employed, said amounts to be paid indefinitely. Appellant was further ordered to pay $100.00 per month for the support of John, the parties’ one minor child.1 Custody of John was awarded to John’s older brother, Tom Evans. Additional facts will be related as they become necessary.

Appellant first argues that the lower court erroneously awarded appellee spousal maintenance in the amount of $275.00 per month for an indefinite period of time. Apparently, it is appellant’s position that the trial court abused its discretion regarding both the amount and the duration of the award. It is an extremely well-settled rule of law that because the trial judge is in the best position to properly tailor an award of spousal maintenance, the trial court is given broad discretion to determine what is a reasonable amount, and we will not interfere with the amount awarded unless an abuse of discretion has been shown. Sommerfield v. Sommerfield, 121 Ariz. 575, 592 P.2d 771 (1979); Burkhardt v. Burkhardt, 109 Ariz. 419, 510 P.2d 735 (1973); Nelson v. Nelson, 114 Ariz. 369, 560 P.2d 1276 (App.1977); Day v. Day, 20 Ariz.App. 472, 513 P.2d 1355 (1973).

According to the testimony presented in the lower court, at the time of the dissolution hearing appellant was not employed because he had spent approximately two months preparing the family residence for sale. However, appellant testified that previous to that he had been employed as a construction worker hanging sheetrock and as a security guard, and that he intended to return to both jobs when the work on the house was finished. It is not strenuously argued, nor could it be, that because appellant only intended to return to these jobs the lower court was not sufficiently presented with an amount of monthly income from which an award of spousal maintenance could be given. Appellant gave no [594]*594indication of anything that would prevent him from returning to either job, and he testified without hesitation regarding the number of hours required by each position and the respective amounts of income he expected to earn.

Rather, appellant argues that an indefinite award of $275.00 per month for maintenance is excessive. We do not agree. Both parties testified that appellee had not worked in the past eight years,2 and the record reflects that appellee only had a tenth grade education. Also, it is undisputed that appellee had Huntington’s disease and that, according to a conciliation court recommendation, it could not be predicted how slowly or rapidly the disease would progress or how much the disease would interfere with appellee’s ability to become employed.

Under these circumstances, we cannot say that the trial court abused its discretion by requiring appellant to pay maintenance of $275.00 per month for an indefinite period of time. Some of the factors to be considered by the trial court when determining the amount of maintenance are: the financial needs of the wife, the wife’s ability to sustain her own needs, the husband’s financial condition, and the standard of living established during the marriage. A.R.S. § 25-319; Lindsay v. Lindsay, 115 Ariz. 322, 565 P.2d 199 (App.1977); Pettibone v. Pettibone, 22 Ariz.App. 570, 529 P.2d 724 (1974). Certainly the schedule of expenses prepared by appellee evidenced a financial need of at least $275.00 per month, even considering that appellee was not awarded custody of her son. It was also proper for the trial court to consider appellee’s undisputed medical condition and the effect it might have on her future ability to sustain herself. Pettibone v. Pettibone, supra. Furthermore, we note that although the award falls near the high end of the scale, the amount awarded is within the guidelines adopted by the Domestic Relations Division of the Maricopa County Superior Court. And finally, when computed on an annual basis, such an amount would reasonably compare to the standard of living established by the parties during their marriage.3

Although the trial court is vested with broad discretion when determining a wife’s need for maintenance, there still must be some support in the record for the court’s determination. Lindsay v. Lindsay, supra. Moreover, spousal maintenance is impermissible unless a spouse meets the requirements of A.R.S. § 25-319(A) at the time of the dissolution hearing. Neal v. Neal, 116 Ariz. 590, 570 P.2d 758 (1977). Accordingly, we find no justification for that part of the maintenance order which required appellant to pay $125.00 per month even if appellee became employed. Appellee testified that she wanted to work, that she had “applications in all over the place,” and that she was next on the list to be hired at Motorola. There is simply nothing in the record to support the trial court’s determination that if appellee obtained employment, she would need an additional $125.00 per month to sustain herself. Nor can additional alimony be predicated on mere hopes and speculative expectations. Kennedy v. Kennedy, 93 Ariz. 252, 379 P.2d 966 (1963); Lindsay v. Lindsay, supra. We therefore strike that portion of the decree requiring appellant to pay maintenance of $125.00 per month if appellee becomes employed. Since we find that the employment of the appellee is unsupported by the record, we of necessity must also strike that portion of the award which conditioned spousal maintenance in the sum of $275 per month “for as long as appellee is unemployed.” The [595]*595amount of spousal maintenance to be paid in the future is best left to future petitions for modification based upon the normal change of circumstances criteria.

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

Related

Hernandez v. Fabian
Court of Appeals of Arizona, 2019
Cleary v. Cordero
Court of Appeals of Arizona, 2017
Bachrach v. Bachrach
Court of Appeals of Arizona, 2017
Cordova v. Cordova
Court of Appeals of Arizona, 2015
Ramsay v. WHEELER-RAMSAY
232 P.3d 1249 (Court of Appeals of Arizona, 2010)
Pullen v. Pullen
222 P.3d 909 (Court of Appeals of Arizona, 2009)
Hughes v. Hughes
869 P.2d 198 (Court of Appeals of Arizona, 1993)
Rainwater v. Rainwater
869 P.2d 176 (Court of Appeals of Arizona, 1993)
In re the Appeal in Maricopa County Juvenile Action No. JD-05401
845 P.2d 1129 (Court of Appeals of Arizona, 1993)
Hardin v. Hardin
788 P.2d 1252 (Court of Appeals of Arizona, 1990)
Lincoln v. Lincoln
746 P.2d 13 (Court of Appeals of Arizona, 1987)
Ruskin v. Ruskin
738 P.2d 779 (Court of Appeals of Arizona, 1987)
Gurr v. Willcutt
707 P.2d 979 (Court of Appeals of Arizona, 1985)
Reeves v. Reeves
706 P.2d 1238 (Court of Appeals of Arizona, 1985)
McCarthy v. McCarthy
704 P.2d 1352 (Court of Appeals of Arizona, 1985)
Thomas v. Thomas
690 P.2d 105 (Court of Appeals of Arizona, 1984)
Marriage of Deatherage v. Deatherage
681 P.2d 469 (Court of Appeals of Arizona, 1984)
Estes v. Superior Court
672 P.2d 180 (Arizona Supreme Court, 1983)
Estes v. SUPERIOR COURT, IN & FOR MARICOPA
672 P.2d 180 (Arizona Supreme Court, 1983)
Richards v. Richards
669 P.2d 1002 (Court of Appeals of Arizona, 1983)

Cite This Page — Counsel Stack

Bluebook (online)
653 P.2d 49, 133 Ariz. 592, 1982 Ariz. App. LEXIS 537, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-hinkston-arizctapp-1982.