Spousal maintenance award must be supported by sufficient evidence

by Annette Burns on November 16, 2007

A spousal maintenance award following a 43-year marriage  was not sustainable under an abuse of discretion standard, because the trial court’s findings regarding husband’s income were not supported by the evidence.    Leathers v. Leathers, 9-13-2007, 1 CA-CV 05-0573    Download Leathers.pdf

Husband testified that his income was approximately $63,000; Wife testified that it was $102,000 per year.  In awarding spousal maintenance, the trial court used an annual income figure of more than $150,000 per year, which was not supported by the evidence.  The Court of Appeals noted that Husband "did not have the type of job that allows for simply multiplying an hourly wage for forty hours a week for fifty-two weeks a year."  The trial court needed to take into account "lags" and "variability of income" into consideration. 

The Court of Appeals found no error in the trial court’s award of "the value of one-half" of Husband’s Social Security benefit to Wife as indefinite spousal maintenance.    Because of the wording of the award, it was not an invalid assignment of his Social Security benefit.    The trial court did, however, need to establish that it had taken into account Wife’s own Social Security benefit as well as any other pension she might receive in making that award, and those considerations were also remanded.

The importance of including all issues in the pretrial statement was emphasized, as the Court of Appeals found that the trial court’s order that Husband maintain a life insurance policy was improper, as that issue was not included as a contested issue in the Pretrial Statement.  "The pretrial statement controls the subsequent course of the litigation", citing Carlton v. Emhardt.     The order that Husband maintain a life insurance policy was reversed.

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