Pendexter v. Pendexter

363 A.2d 743, 1976 Me. LEXIS 368

• Court: Supreme Judicial Court of Maine
• Decided: September 7, 1976
• Status: Published

Opinions

POMEROY, Justice.

By this action appellant seeks reversal of an order of the Superior Court requiring him to pay his former wife an additional $10.00 per week per child for the support of fheir minor children.

We deny the appeal.

Appellant Robert Pendexter and appellee Elizabeth Pendexter were divorced in May 1970. Custody of the four minor children was awarded to Mrs. Pendexter. Mr. Pen-dexter was ordered to make support payments of $18.75 per week per child. In November 1970 Mrs. Pendexter moved for and was granted an increase in support payments of $1.25 per week per child.

In October 1974 she again sought an increase in support, alleging that conditions had changed materially since 1970. Hearing was had with both parties present. By this time, the eldest child was no longer a minor, so consideration was given only to the needs of the three remaining dependents.

Mrs. Pendexter was the only witness to testify at the hearing. Over defendant’s objection, she was permitted to enter into evidence a list of household and personal expenses totaling $184.00 per week. She testified that her weekly income, together with existing support payments, totaled $141 per week, thus leaving a weekly deficit of about $30.00.

At the close of Mrs. Pendexter’s testimony, the plaintiff rested. Defendant thereupon decided to offer no testimony on his own behalf, at which point plaintiff’s counsel asked that he be allowed to call defendant as an adverse witness. Here, the record becomes confused. The court at one point stated to plaintiff’s counsel:

“I’m sure you may call anyone you may wish in a civil case. If you wish to call the defendant, I know of no reason why you can’t call him.”

Mr. Pendexter never took the stand, however, and eventually an order increasing his support obligation by $10.00 per week per child was issued.¹ Defendant seasonably appealed, and plaintiff cross-appealed on the issue of the defendant’s failure to take the stand.

It is appellant’s position that in order for a party to be entitled to an increase in support under 19 M.R.S.A. § 752 he or she must demonstrate (a) the original amount of support has become inadequate, (b) the moving party is unable to meet the increased need, and (c) the supporting party is capable of paying the requested increase. In appellant’s view, none of these requirements was met in this case.

We agree that one seeking an increase in support payments must prove that the increase is necessitated by a change in circumstances and that the supporting party is financially able to meet the requested increase. Luques v. Luques, 127 Me. 356, 143 A. 263 (1928); McLeod v. McLeod, 131 N.J.Eq. 14, 23 A.2d 545 (1942); Ricciardi v. Ricciardi, 91 R.I. 455, 164 A.2d 855 (1960). We shall deal with those two requirements in the context of this case presently. Before that, however, we wish to make it clear that we do not agree with appellant’s second assertion to the effect that when, as here, the moving party in a support action is the wife, she must demonstrate that she is unable to meet the increased need out of her own resources.² The husband is primarily liable for the support of his children, and the wife’s financial status is relevant only if the husband cannot provide a reasonable level of support on his own. Womble v. Womble, 295 Ala. —, 321 So.2d 660 (1975); In Re Weisskopf's Estates, 39 Ill.App.2d 380, 188 N.E.2d 726 (1963); Boerger v. American General Insurance Co. of Minn., 257 Minn. 72, 100 N.W.2d 133 (1959); In Re Estate of Peterson, 66 Wis.2d 535, 225 N.W.2d 644 (1975); H. Clark, Law of Domestic Relations, § 15.1 (1968).³ It follows, therefore, that the wife’s resources are not relevant in an action to increase support if it appears that the husband’s assets are sufficient to meet the expanded needs of the children. Thus, in this case Mrs. Pen-dexter’s income is of no moment as long as she can show that her husband is financially able to meet the increased needs of the children.

Turning to appellant’s other arguments, we treat first the requirement of changed circumstances. Appellant characterizes ap-pellee’s claim of increased need as being nothing more than a general assertion that things cost more because of inflation. In connection with that point, appellant argues that it was error to permit Mrs. Pendexter to testify concerning her household and personal expenses since those expenses were not documented and many of them were attributable to the support of Mrs. Pendexter and her mother rather than the Pendexter children. Appellant further argues that it was error to allow into evidence Mrs. Pendexter’s list of expenses, such list being hearsay, self-serving, and not entirely relevant; and, absent that list, there was no evidence that the children’s needs had changed.

We agree that the list in question was not properly admitted. Rodrigue v. Letendre, 158 Me. 375, 184 A.2d 777 (1962); Hunter v. Totman, 146 Me. 259, 80 A.2d 401 (1951); Talbot v. Hathaway, 113 Me. 324, 93 A. 834 (1915).

We do not agree, however, that the items on the list provided the only evidence of increased need or that the admission of the list prejudiced appellant’s cause. Mrs. Pendexter testified that because of the sharply rising cost of living, especially during the two years immediately preceding her request for increased support,⁴ she was no longer able to make ends meet and that she was forced to incur indebtedness of about $2,000 as a result. She further stated that despite a recent pay increase and the $60.00 per week supplied by her ex-husband under the then existing support order, she had a deficit of between thirty and forty dollars per week.

While it is true, as appellant points out, that part of Mrs. Pendexter’s weekly budgetary deficit was attributable to the higher cost of supporting herself and her mother, the fact that the presiding justice ordered what effectively was an increase of only ten dollars per week indicates to us that he recognized the distinction between child-related and nonchild-related expenses and intended to make appellant bear the burden of only the increases in the former category. We conclude, therefore, that appellee made a sufficient showing of increased need and that appellant was not prejudiced by the admission of appellee’s list of expenses.

Finally, on the issue of Mr. Pendexter’s ability to afford the increased support payments, appellant submits that the only evidence on the point to be adduced at the hearing was Mrs. Pendexter’s statement that Mr. Pendexter was employed as a school teacher, has an antique business, a rooming house, a real estate broker’s license, and may have earned a $6,000.00 broker’s commission in 1974. Appellant contends that these facts do not support the conclusion that he is financially able to pay the increase ordered by the court below.

We do not agree. The evidence of appellant’s financial status was scant, to be sure. However, the uncontroverted testimony that Mr. Pendexter was continuing in his employment as a teacher and that he earned a $6,000.00 commission was sufficient evidence of his ability to pay ten dollars per week more for the support of his children.

Having considered and rejected all of appellant’s arguments, the entry must be:

Appeal denied.⁵

WERNICK, J., did not sit.

1 . The eldest child having reached majority, the amended order in effect increased appellant’s total support obligation by only $10.00 per week.

2 . Appellant points out that appellee’s salary has increased since the latest support order and that appellee is no longer responsible for the support of the eldest child. These changes have resulted, says appellant, in an increase of 120% in appellee’s “per child income” and, having failed to show that the entire increase has been absorbed by inflation, appellee should not be permitted to assert a detrimental change in circumstances. Appellant’s argument has a certain persuasiveness to it, but unfortunately for his cause it does not comport with the present state of the law on the subject.

3 . For an opposite view, see Conway v. Dana, 456 Pa. 536, 318 A.2d 324 (1974). In that case the Pennsylvania Court said:

“We hold that insofar as these decisions [prior line of cases adhering to the position that the husband has the primary duty of support] suggest a presumption that the father, solely because of his sex and without regard to the actual circumstances of the parties, must accept the principal burden of financial support of minor children, they may no longer be followed. Such a presumption is clearly a vestige of the past and incompatible with the present recognition of equality of the sexes. The law must not he reluctant to remain abreast with the developments of society and should unhesitatingly discard former doctrines that embody concepts that have since been discredited.” 318 A.2d at 326.

4 . At several points the court expressed its awareness of the fact that the cost of living has “increased substantially" in recent years.

5 . Since we have determined that appellant’s claim must be denied, we need not reach cross-appellant’s charge that her right to call appellant to the stand was wrongfully denied.

We have doubts that the issue was properly preserved in any case.

Notice: This opinion is subject to formal revision before publication in the Maine Report. Readers are requested to notify the Administrative Assistant to the Chief Justice of any typographical or other errors of form in order that corrections may be made before the print goes to press.