In re the Marriage of Gable

JOSEPH, C. J.,

concurring in part and dissenting in part.

I agree that there is no record on which we can address husband’s assignment of error relating to the pendente lite award. I dissent from the disposition of the permanent spousal support issue.

This case is not quite the same as any cited by the majority, because husband’s future income depends entirely *670on his own efforts, just as his destruction of his income has been entirely by his own efforts. Our dilemma is that, to uphold the support award to wife, we have to be persuaded that we are not imposing an unjust burden, given husband’s actual ability to pay. At the time of the judgment he was receiving unemployment compensation of about $844 a month, out of which he is obligated to provide $400 for the parties’ minor child. Whatever we may believe, and however strong is the basis for the belief, that husband is a swine and that he intends to “get well” financially if, and as soon as, his scheme has worked, the inescapable fact is that he has no present means to pay the amount awarded by the trial court, plus the arrearages, plus the child support, from his present income or assets other than his professional skill.

There is nothing to be gained if we merely turn the present dispute into an unavailing chain of contempt hearings. Just as the award of spousal support is excessive in present circumstances, so is the award of child support. However, husband concedes that the amount of child support is appropriate and that he can pay it. Given that concession, I think it not just that he pay all that he can afford only as child support. I would reduce the child support award to $200 a month and reduce the spousal support award to $200 a month as a permanent award. By that means, we would achieve a correct legal result (that more not be required to be paid than can fairly be paid) and protect wife, as well as the child over the long term, against the craven maneuvering of husband.