Matter of Marriage of Mathews

Sweeney, J.

(dissenting) — The trial court's award of spousal maintenance is amply supported by the facts and should not be disturbed on appeal. I therefore dissent. I disagree with the majority's ruling that the trial court's award of indefinite maintenance does not "evidence a fair consideration of the statutory factors and therefore constitutes an abuse of discretion." Majority, at 123. I respectfully submit that the trial judge, whose obligation it was to weigh the evidence, made the award after fair consideration of those statutory factors. A trial court abuses its discretion only ifit makes amanifestly unreasonable decision or if it exercises discretion on untenable grounds or for untenable reasons. In re Marriage of Sheffer, 60 Wn. App. 51, 53, 802 P.2d 817 (1990).

Trial Testimony and Findings of Fact

Carolyn Mathews was 19 years of age when she married Don Mathews in 1964. She had no formal education beyond high school. The parties established a traditional family relationship: Mr. Mathews was the family's primary wage earner, Mrs. Mathews stayed home and cared for the couple's four children. The evidence supports and the court found that Mrs. Mathews had sacrificed her ability to "go out and become employed ..." in the interests of her family. Finding of fact 7.

At the time of separation, Mrs. Mathews suffered from a stomach ulcer and incapacitating migraine headaches. Dr. David Gilman, Mrs. Mathews' family physician for 9 years, testified that she suffered a severe neck injury in 1969 and as a result had lost about 30 to 40 percent of her regular neck motion; she is also predisposed to premature arthritis. *128Because of the frequency of her debilitating migraines, he did not think she was "very employable".

Sandi Neils, a clinical social worker, began treating Mrs. Mathews in February 1990. She testified that Mrs. Mathews has a "continuous pattern of dependent and submissive behavior". When asked at trial whether Mrs. Mathews was likely to be employable full time, Ms. Neils stated, "there's no certainty that she can manage ftdl-time employment.. ; . She has not had the experience of — of doing that... I think working part time two days a week is — is really all that she could handle." Report of Proceedings, at 179.

Dr. Jack Dutzar, a board certified family practitioner, treated Mrs. Mathews between 1985 and 1989. He testified that she suffered from "a serious and ongoing problem with inflammation of her stomach and stomach lining...". Report of Proceedings, at 143. In his opinion, her ulcer and migraine problems were permanent conditions which would make it "very difficult for her to . . . have been employed on a full-time basis, if at all." Report of Proceedings, at 147. Dr. Dutzar stated that Mrs. Mathews' prognosis for recurring problems is "almost a certainty".

Based on this testimony, I believe the trial corut appropriately found that Mrs. Mathews has "suffered substantial health problems for a number of years . . . which disable her ... at the present time" and that Mrs. Mathews' doctors and her mental health counselor "all question whether she will ever be able to become employed on a full time basis". The trial court went on to observe that

[w]hile the doctors hope she eventually will be able to be gainfully employed full-time, and while [Mrs. Mathews] has the same hopes, the problem of the stress of a ftdl-time job, as opposed to those presented by a part-time job, leaves a real question as to whether or not she will ever be able to handle ftdl-time gainful employment.

The court found Mr. Mathews to be in relatively good health.

The court described Mrs. Mathews' $455 per month income as "nothing... of great consequence...". Mrs. Mathews has a *129"very minimal" amount of retirement, "limited economic circumstances, particularly as opposed to husband" and has no health or life insurance. In contrast, the court found Mr. Mathews, age 48, to have 23 years' experience as a firefighter and a net monthly income of $2,800. Mr. Mathews' retirement account was valued at $73,564. He is eligible to retire at age 50 and receive a full pension. The court found that Mr. Mathews intended to continue his employment with the fire department.

The 4-day trial was largely devoted to the unraveling of Mr. Mathews' business endeavors. Although the court could not identify what, if any, business interest Mr. Mathews had in the Hungry Farmer Restaurant, it found that Mr. Mathews was a bartender, that he had a manager's position in the restaurant, and that his name appeared on the restaurant's incorporation papers. It found that

there is some clear indication that [Mr. Mathews] was cooperating with [the owner] in making hiring decisions, firing decisions, acting as a host, and handling the money. This and other factors indicate a concerted effort on the part of [Mr. Mathews] ... to keep from the light of day any interest which [Mr. Mathews] may potentially have in the Hungry Farmer or to hide an ability which he has to earn income during the pendency of this dissolution matter.

The court entered a finding that Mr. Mathews had

certainly evidenced an ability to be actively involved in another business, for which he has generally been involved in one way or another during most of the years he has been a fire fighter for the Spokane Valley Fire Department.

Further, the court found "[t]here is substantial evidence to clearly show an ability on the part of [Mr. Mathews] to earn income from activities separate and apart from the fire department income . . .".

In finding of fact 7, the court found:

[A]round the time of the separation or the institution of the marital dissolution proceedings, [Mr. Mathews] threatened [Mrs. Mathews] that "if you are trying to impute to me any income from Matt's Construction Company, as part of this dissolution proceeding, this company (Matt's Construction Company) is going to be dissolved."

*130The construction business which Mr. Mathews dissolved after the parties separated, pursuant to his threat, had "gross receipts of approximately $110,000 . . .". The trial court further found that Mr. Mathews "admitted there were monies that were not reported over the course of Matt's Construction Company's existence" which provided "the marital community and their family with additional income." Finding of fact 7. Mrs. Mathews testified that "there were certain jobs that [Mr. Mathews] did under the table" and that at any given time he carried approximately $400 to $1,000 cash. Report of Proceedings, at 329. She testified that Mr. Mathews did not account to her for what he did with the cash. Mr. Mathews admitted that since his separation he had paid cash for new fiimiture, a new television, has taken trips to Reno and Florida, and has paid $1,000 cash to repaint his truck. Report of Proceedings, at 137-38.

I respectfully submit that the majority's conclusion that "there was no evidence proving [Mr. Mathews] was currently earning income apart from his firefighter salary" ignores the trial record and rewards Mr. Mathews' decision to spitefully dissolve a profitable business pending a decree of dissolution. Majority, at 123. This court should not substitute its judgment for that of the trial court by refusing to impute additional income to Mr. Mathews. In re Marriage of Vander Veen, 62 Wn. App. 861, 865, 867, 815 P.2d 843 (1991); In re Marriage of Nicholson, 17 Wn. App. 110, 117, 561 P.2d 1116 (1977). The majority's finding that Mr. Mathews does not have the ability to meet his needs and financial obligations (majority, at 123) is not supported by the trial record; the trial court's finding that he does have that ability is.

Consideration of Statutory Factors

The trial judge heard and assessed the credibility of both parties. It found:

The substantial credible evidence here is in favor of [Mrs. Mathews]; time after time [Mr. Mathews] has been impeached as a witness; and that [Mr. Mathews'] credibility has been substantially damaged. [Mr. Mathews'] answers to questions *131were evasive, and his testimony, after all things were considered, simply was not credible.

In awarding Mrs. Mathews $1,400 maintenance (payable until her death, remarriage or upon her obtaining full-time, gainful employment), the court specifically referenced the statutory factors:

The Court has considered the factors set forth in fixing maintenance as enunciated in RCW 26.09.090 and other relevant factors. The financial resources of [Mrs. Mathews] at this time are just really minimal. The ability to . meet her needs independently is very limited. There will be some time necessary for her to acquire the training which she hopes to obtain in the way of medical secretary work, which according to the vocational counsellor will hopelully be within two years. This may be something, however, that she just cannot really easily accomplish in two years; and because of her condition of health, she may need more time. The parties have established a good standard of living, which should be something that is continued as far as each is concerned. [Mrs. Mathews] is just as much entitled to a continuation of that standard of living as is [Mr. Mathews]. The court has considered the duration of this marriage. [Mrs. Mathews] has devoted herself to basically taking care of the home and maintaining the family, while [Mr. Mathews] has been busy in his own occupation and developing outside business interests. The court has considered [Mrs. Mathews'] age, her physical and emotional condition, as well as her financial obligations and economic circumstances, along with the ability of [Mr. Mathews] to meet [Mrs. Mathews'] needs and to meet his own needs.

(Italics mine.) It then ordered that:

Should [Mrs. Mathews'] physical and mental health conditions allow her to be full-time gainfully employed and should she demonstrate a substantial and reasonable capacity to earn, for a reasonable period of time, an income substantially and reasonably commensurate with spousal maintenance ordered herein, then, and in that event, spousal maintenance herein may be modified and/or terminated.

(Italics mine.)

An award of maintenance is within the trial court's discretion. Vander Veen, at 867. The trial court is to reach a fair and just result after considering all relevant factors, including the financial resources of each party, the age, physical and *132emotional condition and financial obligations of the spouse seeking maintenance, the duration of the marriage and the couple's standard of living during the marriage. RCW 26.09-.090.

The court considered the respective postdissolution economic positions of the parties. The economic realities favored Mr. Mathews who had 23 years of service as a firefighter and who had demonstrated, through business ventures such as Matt's Construction, Matt's Mobile Home Service and Matt's Auctioneering, an ability to earn income in addition to his work with the fire department. On the other hand, as a result of the couple's decision that Mrs. Mathews stay home and care for the four children, Mrs. Mathews has minimal earning capacity and minimal employable skills.

Two expert medical opinions and the testimony of Mrs. Mathews' mental health counselor supported the court's conclusion that Mrs. Mathews is presently unable to, and may never be able to, work full time. Findings of fact supported by substantial evidence should not be disturbed on appeal. In re Marriage of Stern, 57 Wn. App. 707, 717, 789 P.2d 807, review denied, 115 Wn.2d 1013 (1990). Considering the relative postdissolution economic positions of the parties and the statutory factors in RCW 26.09.090, the trial court did not abuse its discretion in awarding Mrs. Mathews $1,400 per month maintenance, payable until her death, remarriage or upon her obtaining full-time, gainful employment.

The courts of this state have recognized the economic realities imposed by a long-term, traditional husband and wife relationship — wife at home raising children, husband in the workplace. In re Marriage of Sheffer, 60 Wn. App. 51, 57, 802 P.2d 817 (1990). By caring for a home and family, a stay-at-home wife and mother forfeits her own economic opportunities. Should a dissolution occur, a woman then lacks the marketable skills necessary to enter the workplace and earn a living to maintain the standard of living she had during the marriage. As noted in Sheffer, at 57,

*133[tjhrough her efforts, [the wife] provided the services needed by the community to function as a family. She did so at a sacrifice of her economic opportunities in the marketplace. That tradeoff, clearly agreed to by [the husband], now leaves [the wife] economically disadvantaged as compared to [the husband].

The adverse economic consequences of marital dissolutions on women are a "significant national and statewide concern". Washington State Task Force on Gender & Justice in the Courts, Final Report 49 (1989). In recent years, 25 percent of white women and 55 percent of black women in the United States have fallen below the poverty line after their marriage has ended. Gender and Justice Task Force, at 49. Interestingly, the task force reported that "divorced men experience an improvement in their standard of living . . .".4 Task Force, at 53.

Maintenance awards may be utilized to equalize the post-dissolution standard of living of the parties, especially when the marriage is long term and the superior earning capacity of one spouse is one of the few assets of the community. Sheffer, at 57. The trial court here recognized a disparity in the couple's earning potential and awarded Mrs. Mathews indefinite maintenance to equalize this economic disparity. A trial court's decision will be affirmed unless no reasonable judge would have reached the same result. In re Marriage of Landry, 103 Wn.2d 807, 809-10, 699 P.2d 214 (1985).

To repeat my concern with the majority's holding:

[T]rial court decisions in a dissolution action will seldom be changed upon appeal. Such decisions are difficult at best. Appellate courts should not encourage appeals by tinkering with them. The emotional and financial interests affected by such decisions are best served by finality. . . .
*134... [If the] trial court carefully analyzed the respective positions of the parties, exercised its discretion and rendered a thoughtful decision. . . . [t]hat ends the matter.

Landry, at 809-10.1 would affirm the award of maintenance.

Review denied at 122 Wn.2d 1021 (1993).

The task force reported the results of a California study which indicated that approximately 1 year after legal divorce, men experienced a 42 percent increase in their standard of living while divorced women experienced a 73 percent decline in their standard of living. An Alaska study, cited in the task force report, indicated that divorced women and children in Alaska experienced a 33 percent decline in per capita income while divorced men experienced a 17 percent rise in their per capita incomes. Task Force, at 53.