§ 518.55

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Abuzzahab v. Abuzzahab · 1984 2 citations

359 N.W.2d 12 (1984) Beverly ABUZZAHAB, Respondent, v. Faruk Said ABUZZAHAB, Appellant. No. C7-82-1540. Supreme Court of Minnesota. November 30, 1984. *13 Walter M. Baker, Edina, Mary C. Sherman, Minneapolis, for appellant. James H. Hennessy, Dale M. Wagner, Minneapolis, for respondent. Considered and decided by the court en banc without oral argument. KELLEY, Justice. Respondent in this marital dissolution proceeding Faruk Said Abuzzahab appeals from the order of the district court denying his motion for a new trial, claiming that the court failed to properly consider a liability in reaching a distribution of marital property and that it abused its discretion in awarding permanent spousal maintenance in the amount of $4,000 per month to the petitioner Beverly Abuzzahab. We affirm the property distribution and reverse and remand the question of spousal maintenance. The parties were married on June 29, 1962 in Washington D.C. and shortly thereafter moved to Minnesota to enable the respondent to obtain a post-graduate degree in pharmacology. Respondent is a board-certified psychiatrist who is presently engaged in the full-time practice of psychiatry and pharmacology. Four children were born during the marriage, three of whom remain unemancipated. In addition, the parties adopted the child of the respondent's deceased sister; that daughter is no longer a minor. A stipulation executed by the parties provided for joint legal custody of the minor children, the physical custody of each of the minor children, liberal visitation rights and a valuation of several of the major marital assets. That stipulation was approved by the court and the substantial marital estate was essentially equally divided. The court awarded Beverly $4,000 per month as permanent spousal maintenance and $400 per month per child as child support for the two children in her physical custody. 1. The respondent first contends that the trial court abused its discretion in failing to recognize and credit to him as against the marital estate, a liability of $80,600, a prepayment for services to be performed by Psychopharmacology Fund, a research concern owned and operated by him. In our view, the fact that payment has been received but the work not yet performed does not require that the valuation of services be included as a liability against the marital estate. As a result, the property distribution, as challenged, shall stand. 2. The primary issue on appeal is whether the trial court abused its discretion in awarding $4,000 per month as permanent spousal maintenance to Beverly. Minn. Stat. § 518.552, subd. 1 (1982) authorizes a trial court to award spousal maintenance if it finds that two criteria are satisfied, i.e., that the spouse: (a) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs, especially during a period of training or education, and (b) Is unable to adequately support himself after considering all relevant circumstances through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate *14 that the custodian not be required to seek employment outside the home. Minn. Stat. § 518.552, subd. 1 (1982). Subdivision 2 of that section sets forth the factors to be considered by the trial court in determining the amount and duration of an award. Minn. Stat. § 518.552, subd. 2 (1982). The record demonstrates that Beverly is a registered nurse, although she has not been so employed since the parties' marriage. At the time of trial, she was enrolled in a course in real estate sales, intending to obtain her real estate license. She presently is employed by Merrill Lynch Realty as a sales person. Although she suffers from chondromalacia, an inflammation beneath the kneecap, her treating physician did not suggest that the condition would affect her employment. The trial court found that she has a maximum earning capacity of $18,000 to $22,000 per year. As a result, she is capable of attaining a degree of self-sufficiency through employment. Minn. Stat. § 518.552, subd. 1(b) (1982). Moreover, under the distribution of marital property, the petitioner has sufficient property to provide for her reasonable needs, including the cash proceeds representing her share of the homestead equity and the cash payments due her as a result of the property settlement. Minn. Stat. § 518.552, subd. 1(a) (1982). Under those circumstances, we conclude that a permanent award is not justified under either statutory or precedential authority and remand the matter to the trial court for further proceedings to establish the durational limitation of the award. See Otis v. Otis, 299 N.W.2d 114 (Minn. 1980). In so doing, we affirm the amount of the award, but direct the trial court to reexamine the criteria contained in section 518.552, subd. 2 (1982) for the purpose of its determination of the appropriate period for an award of temporary maintenance. As we point out in McClelland v. McClelland, 359 N.W.2d 7 (Minn., filed November 30, 1984), filed herewith, the older dependent spouse who has a "traditional marriage" presents a special situation. The dissent in this case likewise stresses that the 1982 amendments to Minn. Stat. § 518.552 reflect this concern. If on remand the trial court determines from the record that it cannot clearly predict the success of the rehabilitation plan, it can, as suggested in McClelland, retain continuing jurisdiction to revise, if necessary, the amount and duration of the maintenance. Affirmed in part; reversed in part and remanded for further proceedings consistent with this decision. SIMONETT, Justice (concurring specially). As part of her property award, the wife receives $300,863.50 in cash, $200,000 of which represents her half equity share in the homestead, for which the husband has mortgaged the homestead to pay her share. The wife apparently intends to purchase a $160,000 house with a downpayment of $100,000. The real estate she receives, which has a negative cash flow, offers a substantial tax shelter. The property distribution and its income and tax consequences are complex and varied. Suffice it to say here that I join in affirmance of the property awards. Interestingly, the trial court says it "took cognizance" of the manner in which the husband attempted to put marital property out of the wife's reach in arriving at its property distribution. I mention the property award because it has a bearing on spousal maintenance. My concern is not with the permanency of the maintenance — as I think that might be justified in this case, unlike in McClelland (also decided today) — but whether, in view of the property settlement, the maintenance is too much. But I concur with the majority opinion on the assumption that the trial court, on remand, will "retain continuing jurisdiction to revise, if necessary, the amount and duration of the maintenance." WAHL, Justice (dissenting). I respectfully dissent. The majority opinion perpetuates this court's misreading *15 of the intent of the legislature in enacting Minn. Stat. § 518.552, 1978 Minn. Laws, ch. 772, § 51, and the court's subsequent misinterpretation of that statute in Otis v. Otis, 299 N.W.2d 114 (Minn.1980). We must review Otis in the light of the legislature's response to our decision in that case, which we have not, until now, had the opportunity to do. Section 518.552 is concerned with the granting of maintenance in marriage dissolution proceedings under Chapter 518. Formerly, alimony[1] was the provision made for a needy wife from the future income or earnings of the husband. The court could determine in any judgment of divorce, as one of the issues of the case, whether or not the wife was entitled to an award of alimony, even though such an award was not then made. Minn. Stat. § 518.55 (1982). The statute did not specify whether alimony should be awarded on a permanent basis, a temporary basis, or either of the two depending on the facts and circumstances of the case. Under this statute, in the exercise of their sound discretion, courts of this state awarded alimony both permanently, Cashman v. Cashman, 256 N.W.2d 640 (Minn.1977); Arundel v. Arundel, 281 N.W.2d 663 (Minn.1979), and for lesser periods of time, Ruzic v. Ruzic, 281 N.W.2d 502 (Minn.1979) (6 years) but not as a matter of right, Cooper v. Cooper, 298 Minn. 247, 251, 214 N.W.2d 682, 685 (1974). An award of permanent alimony was considered a substitute for a husband's duty to support a wife to the extent that her earning capacity was permanently impaired due to the fact that "she was married at a time when the prevailing social custom made her professional career subordinate to her husband's and required that she abandon a career to raise her son and keep house for her husband." Otis, 299 N.W.2d at 118 (Otis, J., dissenting). Factors considered important in the award of permanent alimony were length of the marriage, the wife's age, health, earning capacity, lack of vocational skills or independent resources, contribution to marriage by child-rearing and maintenance of family home in such a way as to contribute to establishment and furtherance of the husband's career, and resources and income of the husband. Loth v. Loth, 227 Minn. 387, 35 N.W.2d 542 (1949); Arundel v. Arundel, 281 N.W.2d at 666. A divorced wife, where alimony was appropriate, was entitled, not just to the bare necessities of life, but to a sum which would enable her to maintain her standard of living at the time of the divorce to the extent the husband was reasonably able to provide it. Arundel, id.; Cooper, 298 Minn. at 251-52, 214 N.W.2d at 686; Botkin v. Botkin, 247 Minn. 25, 77 N.W.2d 172, 175 (1956). In 1978, as the Otis court recognized, the legislature significantly amended the law of divorce. 1978 Minn. Laws, ch. 772. "Alimony" was still allowed but had now become "maintenance" which could be awarded from the future income or earnings of either spouse for the support and maintenance of the other. Minn. Stat. § 518.54, subd. 3 (1978). To have granted maintenance, a court must have found that the spouse seeking maintenance a) lacked sufficient property, including apportioned marital property, to provide for the spouse's reasonable needs, "especially during a period of training or education," and b) was unable to be adequately self-supporting "after considering all relevant circumstances through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home." Minn. Stat. § 518.552, subd. 1 (1978). Again, the statute did not specify whether such support and maintenance should be awarded on a permanent basis, a temporary basis, or either of the two depending on the facts and circumstances of the case, but provided that the maintenance order should be in amounts and for "periods of time" as the *16 court deems just, without regard to marital misconduct and after considering all relevant factors. Minn. Stat. § 518.552, subd. 2 (1978). These factors include for the most part the factors previously considered relevant by our cases in the award of alimony. Minn. Stat. § 518.552, subd. 2(a)-(g)(1978). The court in Otis seemed to read the word "especially" out of the requirement that the spouse seeking maintenance lack "sufficient property, including marital property apportioned to him, to provide for his reasonable needs, especially during a period of training or education," seemed to read "for periods of time" to be something less than permanent, and, citing Florida Court of Appeals cases for the proposition, seemed to conclude that the legislature intended maintenance to be for rehabilitative purposes only. It is true that rehabilitative maintenance is all that many women need, if they need it at all, particularly those women growing up in the 1960s and 1970s with careers and job skills and every expectation of sharing equally in the parenting, household work and finances of marriage. Midlife women, however, those women between the ages of 45 and 65, entered marriage under a very different set of rules. Like Georgia Contos Otis and Beverly Abuzzahab, they abandoned their own jobs and careers to fulfill the expected, traditional roles of mother, wife and hostess for rising business and professional men. In those years in which they would have developed job skills and careers, gained seniority and built up Social Security accounts, they worked at home. Their husbands, like Emmanuel Otis, often forbade these women to seek outside employment because they were "not going to have any wife of mine pound a typewriter." Otis, 299 N.W.2d at 118. There is no indication in section 518.552 that the Minnesota legislature intended the courts to turn this group of women out to lives of poverty in their later years.[2] It is absolutely clear in the legislature's response to Otis v. Otis that the legislature did not so intend. Otis was released October 3, 1980. The 1982 session of the Minnesota legislature adopted, as Chapter 535-S.F. No. 378, the following "act relating to marriage dissolution; clarifying factors to consider in awarding maintenance; amending Minnesota Statutes 1980, Section 518.552" (emphasis added).

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2. Appellant next argues that the trial court abused its discretion in reserving the issue of spousal maintenance. See Minn. Stat. § 518.55, subd. 1 (1984). Although appellant admits that the court has broad discretion in awarding spousal maintenance, he argues that reserving the issue was inappropriate here.

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Natalie contends that the trial court erred in failing to clearly designate whether the payments ordered were for maintenance or support. See Minn. Stat. § 518.55, subd. 1 (1984). She also claims that the trial court failed to consider the factors relevant to maintenance awards. Minn. Stat. § 518.552 (1984). Finally, she argues that the evidence did not support the limitation of rehabilitative maintenance to a two-year period.

Natalie contends that the trial court erred in failing to clearly designate whether the payments ordered were for maintenance or support. See Minn. Stat. § 518.55, subd. 1 (1984). She also claims that the trial court failed to consider the factors relevant to maintenance awards. Minn. Stat. § 518.552 (1984). Finally, she argues that the evidence did not support the limitation of rehabilitative maintenance to a two-year period.

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