Sullivan v. Sullivan

639 P.2d 435, 102 Idaho 737, 1981 Ida. LEXIS 413

• Court: Idaho Supreme Court
• Decided: December 24, 1981
• Docket: 13020
• Status: Published

Opinions

BISTLINE, Justice.

In 1969, after twenty-two years of marriage, plaintiff-respondent Shirley Sullivan filed a complaint against defendant-appellant Edward Sullivan seeking a decree ordering that the parties live separate and apart, that she have custody of their minor children, and that Mr. Sullivan pay her a monthly sum sufficient to provide her and the children “with the necessities and amenities consistent with their station in life.” Mr. Sullivan then employed counsel and counterclaimed, seeking a divorce and an equitable division of the community property-

Thereafter both parties, represented by most able counsel, entered into a written agreement which divided their community property, gave Mrs. Sullivan custody of their minor children and set child support at $150 per month per child. The Agreement also provided that Mr. Sullivan was to pay Mrs. Sullivan alimony of $800 per month, ceasing on her death or remarriage, with the alimony payments increasing proportionately to any increase in the Cost of Living Index up to a maximum of $850.00 per month. The Agreement further noted that Mr. Sullivan had paid Mrs. Sullivan’s counsel attorney fees of $2,500, which Mrs. Sullivan accepted as full and complete payment for all attorneys fees in all further proceedings between them with reference to divorce, separate maintenance, or this Agreement. Finally, the Agreement provided that it would be submitted to the court for approval, but not merged as a part of the judgment.

Such being accomplished, Mrs. Sullivan amended her complaint to allege that the parties had entered into an agreement dividing the community property, providing for the support of the minor children, and providing for alimony. Mrs. Sullivan asked for judgment awarding her alimony of $800 per month, to be adjusted to reflect the increases in the Cost of Living Index, with a ceiling of $850 per month,¹ and that the court approve and confirm the Property Settlement and Custody Agreement. Mr. Sullivan then filed a perfunctory answer and the cause was submitted to the court. At the hearing, where the property settlement agreement was the only exhibit, Mr. Sullivan rested after Mrs. Sullivan rested. The court then entered a judgment and decree in conformance with the allegations of the amended complaint, the court decreeing alimony and child support as prayed for.

Subsequently, in April 1977, Mrs. Sullivan petitioned for a modification of the divorce decree, alleging a substantial and material change in circumstance and asking for an increase in alimony to $2,500 per month. Mr. Sullivan then apparently moved the court to eliminate alimony altogether.² The trial court, after hearing three days of testimony, found that while Mrs. Sullivan’s financial net worth had increased, her standard of living had decreased because of inflation and her ineptness in handling her finances. The court then held that Mrs. Sullivan had “met her burden for an increase in alimony based solely on the effect of inflation on her allowance. She has not met her burden of proof so as to justify an increase in alimony because of any loss of her former standard of living by factors other than inflation.” The court then increased alimony to $1,500 per month.³

As to Mr. Sullivan’s attempt to eliminate alimony entirely, the trial court denied this petition on the grounds that Mr. Sullivan was not genuinely interested in having the alimony reduced, that this was just a defensive position, and that he had failed to meet his requisite burden of proof. The court subsequently awarded Mrs. Sulliyan $2,776.00 in attorney fees, as against a request of $8,300.00. To arrive at this figure, the court noted that Mrs. Sullivan could have established her case solely by showing her own basic needs, the cost of living increase and that Mr. Sullivan had the ability to pay; the court held that Mrs. Sullivan was responsible for her own attorney’s fees for the large expenditure of counsel’s time spent in undertaking to establish entitlement to an even greater increase in alimony based on Mr. Sullivan’s increased prosperity — an undertaking in which she did not prevail.⁴

There are two primary issues on this appeal, both raised by Mr. Sullivan: ⁵ (1) whether the trial court erred in finding that Mr. Sullivan had not sustained his burden to show that alimony should be eliminated entirely; and (2) whether the trial court erred in increasing alimony solely on the grounds of inflation.⁶

As to the first issue, “the resolution of this question rests within the discretion of the trial court .. . . ” Olsen v. Olsen, 98 Idaho 10, 11, 557 P.2d 604, 605 (1976). There is abundant evidence to support the trial court’s finding, and we find no abuse of discretion.

As to the second issue, however, we hold that inflation, cost-of-living increases, or devaluation of the dollar, however termed, are not sufficient, standing alone, absent any corresponding determination of the correlative needs and abilities of both parties, to modify an award of alimony. See Ducote v. Ducote, 339 So.2d 835 (La.1976); Fakouri v. Perkins, 322 So.2d 401 (La.App.1975). Accordingly, the decision of the trial court increasing alimony payments is reversed.⁷ Correspondingly, since Mrs. Sullivan is no longer the prevailing party, the award of attorney’s fees cannot stand.

The order modifying the final decree is reversed, with no costs allowed.

McFADDEN and DONALDSON, JJ., concur. BAKES, C. J., concurs in the result. SHEPARD, J., concurs in part and dissents in part.

1 . Pursuant to this provision, alimony payments were increased to $850.00 on January 15, 1972.

2 . Although no such motion appears in the record, the trial court dealt with the matter as if such a motion had been filed.

3 .This figure was apparently based on the trial court’s computation that since the cost of living had increased 186% since 1967, “it would take $1488.00 per month to replace the plaintiffs original $800.00 per month alimony allowance.”

4 . In his letter explaining the award of fees, the trial court reiterated that “[t]he increase in alimony won by plaintiff was based entirely on the application of inflationary influences on the award she won in the original action.”

5 . Mr. Sullivan also challenges the constitutionality of I.C. § 32-706, citing Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979). It is a basic rule of this Court, however, that constitutional issues generally will not be considered when raised for the first time on appeal. See Oregon Shortline Railroad Co. v. City of Chubbuck, 93 Idaho 815, 474 P.2d 244 (1970). Indeed, the Court in Orr noted that states are not precluded “from holding that contempt proceedings are too late in the process to challenge the constitutionality of a divorce decree already entered without constitutional objection .... ” 99 S.Ct. at 1109 n.4. The Court further noted that it might have been without jurisdiction to consider Mr. Orr’s constitutional objection if the Alabama courts had refused to hear it because of Mr. Orr’s failure to raise the constitutional challenge until Mrs. Orr sought a contempt judgment against him for his failure to abide by the terms of the decree. 99 S.Ct. at 1109.

It is also a general rule of this Court that “the constitutionality of a statute will not be passed on unless it is absolutely necessary for a determination of the merits of the case,” Swensen v. Buildings, Inc., 93 Idaho 466, 469, 463 P.2d 932, 935 (1970), and it is unnecessary to discuss this constitutional issue in view of our holding.

6 . In view of our holding, we need not consider any other issues raised.

The dissent suggests that because the provision for alimony was part of a voluntary agreement entered into between the parties which was not merged into the court’s decree, the agreement was “a bar to the court’s authority to either increase the alimony or eliminate it altogether.” Although it is generally true that a court has no authority to modify a property settlement agreement that has been merely ratified or approved by the court but not merged into the court’s decree, the reason for this rule is that I.C. § 32-706 “expressly limits the court with respect to the matter of modification of support and maintenance and to the wife, to a modification of the court’s orders; if there is no such order embodied within a decree, then there is nothing in this respect for the court to modify.” Bainbridge v. Bainbridge, 75 Idaho 13, 23, 265 P.2d 662, 669 (1954) (emphasis added). The general rule, however, is not applicable in this case because in addition to stating in its decree that the property settlement agreement “is hereby ratified, confirmed and approved, but is not merged herein,” the trial court specifically ordered the defendant to make alimony payments. Thus the court had continuing jurisdiction under I.C. § 32-706 to modify the alimony award. While an agreement in which the property distribution and alimony award are integrated may, under some circumstances regardless of merger, limit the authority of the court to modify the alimony award, see Roesbery v. Roesbery, 88 Idaho 514, 401 P.2d 805 (1965), neither party in this case raised the issue and, quite the contrary, both parties proceeded on the basis that the alimony award was subject to modification — which was also the apparent view of the trial judge who had entered the decree. Because neither party objected to the court’s exercise of authority in modifying the alimony, this issue is removed from our consideration in reaching our decision. See V-I Oil Company v. Lacy, 97 Idaho 468, 469, 546 P.2d 1176, 1177 (1976); M & I Timber Co. v. Hope Silver-Lead Mines, Inc., 91 Idaho 638, 643, 428 P.2d 955, 960 (1967).

Moreover, had either party felt any dissatisfaction with paragraph 4 of the decree which ordered alimony, attack on its incorporation therein could have been made in the trial court by appropriate motion. No member of this Court was privy to any of the conversations between counsel who represented the parties at the time the decree was entered, nor privy to any conversations between both counsel and the trial court. Hence, no one at this level can know but what all three knew exactly what was being done, the result of which was a decree which ordered both child support and alimony payments. It was within the province of the court to order child support no matter what the parties contractually agreed upon, and it certainly was not without the jurisdiction of the trial court to enter an award of alimony. It may have been erroneous, but certainly not without jurisdiction. That jurisdiction entails jurisdiction to commit error is as beyond dispute as is the proposition that error will not be presumed.

7 . Counsel for Mrs. Sullivan acknowledges in his brief that the judgment in her favor would have to be reversed if she had relied solely on the rate of inflation to prove her case. Counsel argues, however, that he has shown a material change in circumstances justifying an increase by showing the effect that inflation has had on Mrs. Sullivan’s living expenses. The decision of the trial court, however, was based solely on the effect of inflation on her allowance. As we have held above, a holding that inflation has reduced the value of alimony payments by itself cannot support an increase in those payments.