Recent Twists and Turns in the Evolution of Alimony
| Publication year | 1994 |
| Pages | 6 |
June, 1994
David S. Dolowitz, J.
The evolution of the law of alimony was explored in an article published in December of 1989 {Utah Bar Journal, Vol. 2 No. 10). Since then, a number of decisions have moved the law down interesting, and in some instances, conflicting pathways which present challenges to practitioners and trial courts alike. These questions result in part from the continued unexplored conflict between the goals of providing alimony to maintain the standard of living enjoyed during the marriage and the goal of encouraging rehabilitation and self-support by the recipient. While there has been an exploration and articulation of some of the concepts which underpin these conflicting social goals, no formula has been articulated which can be generally utilized by the practitioner or the court in confronting an alimony case.
An interesting conceptual basis for alimony was articulated by Cicily Carson Maton in "Opportunity Costs in Divorce Cases", Fair$hare — The Matrimonial Law Monthly, Vol. #12, December, 1992. Ms. Maton suggests:
Opportunity 'costs' in the context of marriage and divorce may be defined as the loss of market wages, employment benefits, a depreciation of earning capacity.
Id. at 6.
She then goes on to point out that choices and decisions are made throughout a marriage where one spouse advances his/her earning capacity by education, job experience, professional training, while the other may make the choice of staying home to raise children, having children, moving away from a job, working for low or no wages to assist in a family business or working for the benefit of an entire family group. These career enhancements or sacrifices must be recognized at the time of a divorce. The spouse, whether it is a man or a woman, who has sacrificed his/her career development to assist in the professional or business training and experience of the employed spouse has given up opportunities for which compensation (alimony) should be paid.
Cicily Carson Maton goes on to discuss a research study concerning women who remained in the work force versus those who for some reason interrupted their jobs. Those who do often suffer economic detriment for which alimony should serve as compensation. The study followed women who interrupted their jobs for at least six months and, when comparing such women with those who stayed on the job, concluded that the women who dropped out of the work force earned, on average, thirty-three percent less during the year they returned to the work force than did a woman who stayed on the job. Even after eleven to twenty years, women who dropped out for any length of time were earning ten percent less than women who had not had an interruption. After twenty years, the gap between those who had remained on the job and those who had dropped out for a period of time was seven percent. In other words, at least in the women studied, those who had dropped out of the work force for family purposes suffered a loss of earning capacity, to-wit: an opportunity cost which was never recovered.
Quantifying opportunity cost is a difficult chore for the courts, but if that were the articulated goal at least it could be pursued. This concept has been adopted in Illinois, as is clear from the examination of the relatively recent case of In Re Marriage of Schuster, 224 Ill.App.3d 958, 167 Ill.Dec. 73, 586 N.E.2d 1345 (111. App. Second Dist. 1992). The court stated:
The policy underlying maintenance awards is that a spouse who is disadvantaged through marriage be enabled to enjoy a standard of living commensurate with that during the marriage.
586 N.E. 2d at 1354.
The Appellate Court goes on to note that the recipient spouse cannot simply sit around and expect to be supported:
The Illinois Marriage and Dissolution of Marriage Act (Act) creates an affirmative duty on a spouse requesting maintenance to seek and accept appropriate employment. (206 Ill.App.3d at 510, 152 Ill.Dec. 27, 565 N.E.2d 269.) An award of maintenance to a spouse capable of improving his income can be an abuse of discretion.
586 N.E.2d at 1354.
If Utah had a clearly stated underlying policy for alimony, implementing that policy by decision would be more easily effected and the conflict in decisions which are discussed in this article should not exist.
PROFESSIONAL MARRIAGES
The Utah Supreme Court has rendered two decisions involving the termination of marriages involving a professional spouse in which major guideposts to handling that particular situation were erected. At the time of publication of the original alimony article, the decision of Martinez v. Martinez, 754 P.2d 69 (Utah App. 1988) was pending before the Utah Supreme Court. On September 16, 1991, the decision in that case was published. Martinez v. Martinez, 818 P.2d 538 (Utah 1991). Justice Stewart, speaking for the majority of the court ruled that the Court of Appeals' remedy of equitable resolution, where one spouse had helped the other attain a professional degree, was inconsistent with Utah law and the ruling of the Court of Appeals was vacated. The majority declared that utilizing alimony and property distribution if any available, was the appropriate remedy. As Justice Stewart articulated for the court:
An alimony award should be determined by the receiving spouse's earning capacity, financial condition and needs and by the ability of the other spouse to provide support. See Jones, 700 P.2d at 1075 (Utah 1985). . . . Usually the needs of the spouses are assessed in light of the standard of living they had during the marriage. Gardner v. Gardner, 748 P.2d 1076, 1081 (Utah 1988); Jones, 700 P.2d at 1075. In some circumstances, it may be appropriate to try to equalize the spouses' respective standards of living. Gardner, 748 P.2d at 1081; see also Olson v. Olson, 704 P.2d 564, 566 (Utah 1985); Higley v. Higley, 676 P.2d 379, 381 (Utah 1983). When a marriage of long duration dissolves on the threshold of a major change in the income of one of the spouses due to the collective efforts of both, that change, unless unrelated to the efforts put forward by the spouses during the marriage, should be given some weight in fashioning the support award. Cf. Savage v. Savage, 658 P.2d 1201, 1205 (Utah, 1983). Thus, if one spouse's earning capacity has been greatly enhanced through the efforts of both spouses during the marriage, it may be appropriate for the trial court to make a compensating adjustment in dividing the marital property and awarding alimony. See, e.g., Kerr v. Kerr, 610 P.2d 1380 (Utah, 1980); Tremayne v. Tremayne, 116 Utah 483, 211 P.2d 452 (1949).
818 P.2d at 542.
Justice Durham dissented from the majority. She declared that in a case such as Martinez where there was insufficient property available to compensate the spouse who had been investing time, labor and earnings in the improved standard of living for the long term benefit of the marital community, that spouse was entitled to compensation and equitable restitution was appropriate. Justice Durham pointed out that if you examine only the criteria recited by the majority, that is, that alimony is normally based upon the needs of the recipient spouse, the ability of the recipient spouse to produce sufficient income to meet those needs and the ability of the pay or to pay the support, you will not have addressed the major problem of awarding sufficient alimony. This is particularly true when attempting to equalize the parties' respective standards of living and maintain them at a level as close as possible to the standard of living enjoyed during the marriage because, in bottom line terms, the parties will never have enjoyed the standard of living during the marriage that the professional spouse will now enjoy. 818 P.2d at 544-46. As applied to the Martinez facts, Dr. Martinez was just completing his residency and starting into private practice at the time of trial. The parties had never enjoyed the six figure income he was now starting to earn.
Justice Durham went on to observe that even if alimony is utilized as the majority requires, there is the additional problem of alimony terminating, by statute, on remarriage or cohabitation. Thus, unless a special criteria is established to compensate the non-professional spouse, alimony cannot properly do what the majority declares it should. Justice Durham pointed out that the majority failed to provide any guidelines for the trial court to impose a realistic standard or methodology for making appropriate awards to meet this problem or to adequately compensate the non-professional spouse. 818 P.2d at 544-46.
The Utah Court of Appeals issued its opinion in Johnson v. Johnson, 855 P.2d 250 (Utah App. 1993) on June 4, 1993, less than two years after Justice Durham voiced her concerns. The Johnson opinion clearly demonstrated the validity of Justice Durham's concerns by reversing the trial court's award of non-terminable alimony to the non-professional spouse. The appeals court found that non-terminable alimony was not the appropriate method of compensating the non-professional spouse and, in fact, was legally impermissible.
It is ironic that Justice Zimmerman in Martinez concurred specially to deal with the dissenting opinion of Justice Durham, yet he too was ignored in Johnson. In his opinion, he attempted to bridge the two positions and provide some of the guidelines that Justice Durham had noted were omitted in the majority decision. In his concurring opinion, Justice Zimmerman stated:
The majority opinion also makes it clear that the trial court can make such compensating adjustments to both the property division and the alimony award as it deems necessary to make the ultimate decision equitable....
818 P.2d at 543.
The Supreme Court did not discuss the concept of non-terminating...
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