Paul v. Paul

ROSE, Justice.

These two cases involve a former wife’s appeal from a property settlement in a divorce and the former husband’s cross-appeal.

Mrs. Paul presents five issues in her appeal:

1. The trial judge erred in estimating the net worth of the marital estate and the husband’s earning capacity, and this factual error prejudiced the property division;
2. The trial court abused its discretion in determining the property division;
3. The wife was prejudiced by the failure of the trial court to enforce her discovery rights;
4. The husband was at fault and the wife was prejudiced by the refusal of the trial court to allow evidence of the husband’s fault; and
5. The judgment that the wife be responsible for a credit-card debt was improper on procedural grounds.

In his cross-appeal, Mr. Paul raises three issues:

1. The award of $10,000.00 to the wife for attorneys’ fees is improper because the fees were not proved;
2. The trial court lacked jurisdiction to award some household furnishings which were owned by a corporation; and
3. The trial court acted arbitrarily in deeming that the husband or the corporation, of which he was a major shareholder, had waived right to the aforementioned furnishings.

We will affirm.

FACTORS CONSIDERED BY THE COURT

The record shows that the court took the following factors into consideration in settling the property issue in this case:

Age of the parties; the number and age of the children of both parties by prior marriages and the child born as the issue of this marriage; the responsibility of each of the parties to all children; and the welfare of all of them. The age and station in life of each party was considered. The court took note of the probability of marriage of each of the parties. The court considered the length of the marriage and the separation, noting the parties had been separated for three years and divorce proceedings had been pending for some five years. The trial judge observed that the marriage had been stormy from the beginning. He considered the assets and liabilities brought into the marriage by both parties and the assets and liabilities of each party as they leave the marriage — the husband’s ability to pay and earn — the wife’s ability to earn — the financial requirements of both parties — and the social status of each. The court also considered the health of each of the parties— other pending divorce actions and the attorney-fee obligation of the parties. Generally speaking, the court took careful and con*710sidered note of all of the elements required by law in matters of this nature.

THE FACTS

The wife was 28 and the husband 46 when they married — the second marriage for her and the third for him. They were 44 and 61 respectively when divorced, but they had been separated for three years prior to the divorce — in fact, a divorce petition had been filed in the East for some five years before the divorce and was pending when the court heard this case.

After trial, the court found the husband to have a net worth of $1,400,000.00 and an earning capacity of $75,000.00 per year. The judge’s decision letter indicates that the husband also receives $24,000.00 a year from some of his income-producing property. In settling the property, the court took into account the probable retirement age of the defendant as being 65 with respect to his future expected earning capacity, as well as the wife’s age, needs, and the probability that she will remarry.

According to the judge’s decision letter, the wife brought $21,400.00 into the marriage, while the husband, at the time of the marriage, was worth $2,600,000.00, which figure included the husband’s family home which he contributed to the marriage. These figures show, therefore, that during the fifteen or sixteen years from marriage to divorce, the net worth of the husband was depleted by some $1,200,000.00.

In addition to settling the property dispute and the divorce issues, the judgment provided for custody of the parties’ only child in the wife and for child support of $300.00 a month until the child reaches majority or becomes otherwise emancipated. The husband is also ordered to pay for the college expenses at a college of the child’s choice. The corpus of a trust capable of producing $20,000.00 per year to the wife for 34.2 years was also set over to the child of the, parties when its obligation to Mrs. Paul had been discharged.

Allegation of Trial Court’s Factual Error

The wife alleges that the trial court erred in estimating the husband’s net worth and annual earning capacity and that this error prejudiced the property division. The wife lists a number of assets owned by the husband, together with the respective value of each item. According to Mrs. Paul’s arithmetic, Mr. Paul is worth more than $2,000,000.00 instead of the $1,400,000.00 found by the court or the $1,040,000.00 claimed by the husband. However, applying our appellate rules for resolving conflicts in the evidence, we do not find the wife’s claim of factual error by the trial court meritorious. There is sufficient evidence of record to support the trial court’s conclusion in this regard.

PROPERTY DIVISION

For wife — Household furnishings and items of personal property:

The judgment contemplates that the wife is to have as her sole and separate property, items from their Pittsburgh residence, most of which are fine household furnishings, silver, jewelry, china and other articles of value. The list of these objects, single-spaced, consumes three legal-size pages of paper. The court did not set a value upon these various household furnishings and other items of personalty, but we observe and take judicial notice of the fact that the articles listed are of good quality and high value.

Jewelry:

There is evidence in the case that Mrs. Paul’s Indian jewelry has a value of eighty to ninety thousand dollars. She retains this property, and she also retains a five-carat engagement ring.

Cars, horses and snowmobiles :

Mrs. Paul retains a truck, an expensive automobile, three snowmobiles and some horses. There is no monetary value set for these items.

For husband:

(a) Family home: The family home, valued at between $280,000.00 and $415,000.00, *711was set over to the husband. The trial court apparently averaged these two figures and, after making allowance for taxes and assessments due, valued the home at $336,000.00.
(b) Stocks and bonds: The principal assets set over to the husband were stocks in various corporations. These assets, by and large, make up the difference between the family-home value and the net-worth figure previously indicated, i. e., $1,400,000.00.

DEBTS AND OBLIGATIONS ORDERED BY THE COURT

A. Wife’s debts and obligations established by the decree:

Mrs. Paul was ordered to discharge a credit-card obligation in the sum of $2,300.00, which was incurred by reason of her stealing and using the defendant’s credit card. She was also left to pay some of her attorneys’ fees incurred in this and other divorce suits filed in other states. How much of Mrs. Paul’s attorneys’ fees in other states the plaintiff or defendant will have to pay is not shown by the record. The court could not, of course, have ascertained this.

B. Husband’s debts and financial obligations established by the decree:

(1)The defendant husband was ordered to finance a trust fund in a way which would return to Mrs. Paul $20,000.00 per year, commencing one year from the judgment and continuing for 34.2 years or life, whichever was the shorter period of time, with the corpus to go to the child of the parties when the fund’s obligations to Mrs. Paul had been discharged. This award returns to Mrs. Paul $1,666.66 per month throughout her life expectancy. It imposes upon the husband a total obligation of approximately $680,000.00 from trust fund payments (assuming a figure of $200,000.00 is sufficient to fund the trust) and is somewhat more than one-half the amount that Mrs. Paul testified would be sufficient for her needs.

(2) Mr. Paul was further ordered to pay to the plaintiff the sum of $2,000.00 per month for one year, or $24,000.00.

(3) The defendant was ordered to pay $10,000.00 for the plaintiff’s Wyoming attorney’s fees.

(4) Mr. Paul was ordered to pay $300.00 per month for the support of the minor child until majority or emancipation. Assuming she goes to college at age 18 (when approximately $5,000.00 per year becomes the obligation of the husband), the husband must pay $3,600.00 per year for three years, or $10,800.00.

(5) The husband was ordered to pay for the daughter’s college education; even though there is no evidence as to the cost of this obligation to the defendant, we assume it to be a minimum of $20,000.00.

The total financial obligation of the husband to the wife and child is:

1. $680,000.00 to the wife over a period of 34.2 years;
2. $24,000.00 to the wife over a period of one year;
3. $10,000.00 for the wife’s Wyoming attorney’s fees.
4. $10,800.00 for child support before college; and
5. $20,000.00 for college education for child of the parties,

making a total of $744,800.00 ($750,000.00, rounded).1

*712The final box score looks like this:
The husband is obligated to pay . . $750,000.00
The wife receives in payments . . . $714,000.00
The child receives in payments . . $230,800.002
The wife receives (in jewelry value) .$ 80,000.00
The wife receives (in household furnishings, truck, automobiles and horses an undetermined amount).$_
Total paid by husband.$750,000.00
Total received by wife.$795,000.00 (plus the value of household items, automobiles, truck, horses and personal property).
Total received by child.$230,800.003

LEGAL QUESTIONS RESOLVED

I.Was the property division just and equitable’?

In evaluating the wife’s claim that the property division was not just and equitable and was an abuse of the trial court’s discretion, we must look to both our statutory and case law.

Section 20-2-114, W.S.1977, provides:

“In granting a divorce, the court shall make such disposition of the property of the parties as appears just and equitable, having regard for the respective merits of the parties and the condition in which they will be left by the divorce, the party through whom the property was acquired, and the burdens imposed upon the property for the benefit of either party and children. The court may decree to the wife reasonable alimony out of the estate of the other having regard for his ability and may order so much of his real estate or the rents and profits thereof as is necessary be assigned and set out to either party for life, or may decree a specific sum be paid by him.”

An analysis of the statute and the Wyoming cases interpreting it or similar predecessor statutes, finds the following principles relevant to the case at Bar:

1. The trial court has great discretion in dividing the property. “[A] just and equitable division is as likely as not to be unequal.” Piper v. Piper, Wyo., 487 P.2d 1062, 1064 (1971). There are “no hard and fast rules” governing property divisions. Young v. Young, Wyo., 472 P.2d 784, 785 (1970).

2. The trial court’s discretion won’t be disturbed except on clear grounds, e. g., Piper, supra, at 1063.

3. The Wyoming Supreme Court cannot constitute itself as a court of the first instance to divide property in divorce cases. Merritt v. Merritt, Wyo., 586 P.2d 550, 555 (1978).

4. “Generally speaking, a settlement [property settlement] needs to be judged on an overall basis and not necessarily on the basis of separate parts.” Piper, supra, at 1065.

5. The length of marriage is a consideration. Id.

6. Judicial discretion should not be exercised so as to reward one party and punish the other. Storm v. Storm, Wyo., 470 P.2d 367, 371 (1970); and Beckle v. Beckle, Wyo., 452 P.2d 205, 208 (1969). But the court should consider the parties’ merits. Id.

7. Joint ownership of property resulting from a demonstrated intent to share is a “burden imposed upon the property for the benefit” of both owners; the statute directs consideration of this burden as one factor. Id.

8. The court should consider- through which party the property was acquired. Id.

9. The court should consider the condition in which the parties will be left after the division. Id.

*71310. An award of property is a preferable, modern substitute for alimony. Young v. Young, supra, at 786-787.

11. A property division may reach the separate property of either spouse. E. g., Craver v. Craver, Wyo., 601 P.2d 999 (1979).

12. The question of who pays the attorney fees is a part of the property division. Karns v. Karns, Wyo., 511 P.2d 955, 956 (1973).

In reviewing our case law which contemplates contested property divisions, Warren v. Warren, Wyo., 361 P.2d 525 (1961), may be utilized as a backdrop against which the property distribution in these appeals is considered.

In Warren, supra, 361 P.2d at 526-527, we said:

“. . . [0]n several previous occasions this court has announced these principles with respect to property divisions in divorce cases: (1) In making a division of property under the statute the trial court exercises a discretion; (2) there are no hard and fast rules to control its action; (3) the statute does not require an equal division; (4) a just and equitable division is as likely as not to be unequal; and (5) the decision of the trial court should not be disturbed, except on clear grounds, as that court is usually in a better position than the appellate court to judge of the respective merits and needs of the parties. See Boschetto v. Boschetto, 80 Wyo. 374, 343 P.2d 503, 506; Crawford v. Crawford, 63 Wyo. 1, 176 P.2d 792; Garman v. Garman, 59 Wyo. 1, 136 P.2d 517, 518; O’Day v. O’Day, 47 Wyo. 22, 30 P.2d 488, 489; Lovejoy v. Lovejoy, 36 Wyo. 379, 256 P. 76, 79; Id., 38 Wyo. 358, 267 P. 91.

“In the case of Boschetto v. Boschetto, supra [80 Wyo. 374, 343 P.2d 506], it was said:

Inasmuch as a trial court’s judgment cannot be disturbed except on clear grounds, we have seldom interfered with the action of the trial courts and whenever we have done so we have interfered only to a very limited extent. It is readily seen that unless we adhere to that course we should be apt to have before this court a plethora of appeals in divorce cases involving a division of property and asking us to virtually constitute ourselves as a court of first instance to divide the property. We do not think that this is the function of this court.’ ”

The Warren marriage lasted twenty years — longer than the Paul marriage. The Warren marriage also produced issue— three children by Caesarean section; additionally there were three interrupted pregnancies. The Warrens’ marital estate appears to have been worth slightly over $800,000.00, an amount comparable to the value of the Pauls’ marital estate if we take the inflation factor since 1961 into account. In Warren, as in the Paul marriage, virtually all of the assets of the marital estate were acquired by the husband. (The Warren husband inherited most of these assets during the marriage; in the case at bar, the husband brought his assets into the marriage.) The Warren trial court made approximately a 15 to 1 division in favor of the husband, awarding the wife some $55,-000.00 and the husband some $750,000.00. The trial court also provided for monthly payments to the wife of $500.00. Upon the wife’s appeal, we affirmed, although we modified a portion of the judgment so as to enable the wife to continue receiving the monthly payments even if she remarried. (We did so because we thought the trial judge intended a property division, not an award of alimony.) The $20,000.00 per year trust fund arrangement for Mrs. Paul compares favorably with the $6,000.00 per year award to the Warren wife.4

*714In finding as we do that the trial judge did not abuse his discretion in allocating property for settlement purposes, we offer the following: As an appellate court, we consider that our power to disturb a property settlement fixed by a trial judge is limited indeed. There must be a clear abuse of discretion before we will upset or adjust such a settlement. We consider “abuse of discretion,” to be such abuse as shocks the conscience of the court. It must appear so unfair and inequitable that reasonable persons could not abide it.

We will not — except in extreme circumstances — reach in and readjust property distributions which our able trial judges have described after presiding over the trial which furnishes them with great advantage for decision-making in such matters.

The question cannot be, What would we have done as trial judges? but must be and is, Did the trial judge act so outrageously in his property settlement decision as to constitute an abuse of discretion?

In this case, we are asked to say that such was the conduct of a judge who— in settling the issues of this difficult case— guaranteed 44-year-old Mrs. Paul about $800,000.00, most of which is spread over her life expectancy, and the child approximately $230,800.00, while at the same time leaving the 61-year-old husband with what seems, according to the considerations appropriate in these cases, to be a fair and equitable distribution of the family assets— almost all of which he brought into the marriage.

Not only do we not find that the judge abused his discretion, but we find the distribution fair, just and judiciously contrived.

Discovery.

Discovery in this case has been complicated by the fact that lawsuits for divorce were filed in three states. The wife originally filed in 1974 in Pennsylvania. A reconciliation was achieved in 1974, but the Pennsylvania lawsuit survived the reconciliation; in 1976 the couple separated, and the Pennsylvania suit for divorce was activated. In 1977, the wife initiated the present Wyoming action. In 1979, the husband initiated suit for divorce in Arkansas.

Mrs. Paul alleges prejudice due to the trial court’s refusal to impose formal sanctions to enforce her discovery rights. In December of 1978, the wife served 30 interrogatories on the husband requesting, inter alia, detailed financial information. These were not answered and the wife petitioned the trial court for redress. The trial court then threatened the husband with an averse judgment if he did not respond. This resulted in the husband’s making himself available to orally answer the questions on February 26, 1979. At that proceeding, Mr. Paul answered some questions directly. Other questions he insisted on answering by asserting that the question had already been answered during discovery or other proceedings attendant upon the Pennsylvania or Arkansas lawsuits and that he was being subjected to harassment. He declared that he was unable to answer some questions on the grounds that Mrs. Paul had stolen and destroyed many of his business records.

Several days before the acrimonious February 26 proceeding, the husband had filed in the trial court a notice that he would make available for inspection on February 26 various documents relevant to the interrogatories. These were not produced at the meeting.

Shortly before the trial, the husband was served a subpoena duces tecum. This was apparently not complied with.

Prior to trial, the plaintiff moved the court for sanctions, alleging that her husband had failed to satisfactorily answer the interrogatories at the February 26 meeting. The motion detailed the reasons why she had been unable to procure transcripts of the various Pennsylvania proceedings. At the opening of the trial, the trial judge stated that he was taking this motion under advisement. During the cross-examination *715of the husband at trial, the wife’s counsel established the husband’s failure to comply with the subpoena duces tecum, but did not show prejudice flowing from the failure to complete discovery.

Rule 37, W.R.C.P., provides that the trial judge may impose sanctions for failure to comply with a discovery order. This means that the trial court has discretion to impose or not impose one of the listed sanctions. See, National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976), rehearing denied, 429 U.S. 874, 97 S.Ct. 197, 50 L.Ed.2d 158 (1976), for a discussion of the trial court’s discretion under Rule 37, F.R.C.P. See, also, Marshall v. Ford Motor Co., 10 Cir., 446 F.2d 712, 713 (1971). Satterfield v. Sunny Day Resources, Inc., Wyo., 581 P.2d 1386, 1388 (1978), rehearing denied, is also suggestive of this conclusion. Upon appellate review, the function of the reviewing court is not to put itself in the place of the trial court and to determine with hindsight what sanction, if any, would have been most appropriate; the reviewing court’s task is simply one of deciding whether or not prejudice had been suffered by reason of the trial judge’s alleged abuse of discretion. National Hockey League, supra. See, also, Local Union No. 251 v. Town Line Sand & Gravel, Inc., 1 Cir., 511 F.2d 1198 (1975). In the case at Bar, the trial judge dealt with the counsel; he was in a position to assess the husband’s claim of abusive discovery; and he was in a position to better estimate whether the husband’s improper conduct was prejudicing the wife’s efforts at trial. We cannot conclude, as a matter of law, that the trial judge abused his discretion by failing to impose sanctions.

Testimony on fault.

The transcript shows that the trial judge told the parties that he would not consider fault in a division involving this much property. The wife concedes that Wyoming is now a no-fault divorce jurisdiction but argues that the legislature intended to retain the issue of fault in property settlements because § 20-2-114, supra, still directs the court to have regard “for the respective merits of the parties.” We are not persuaded. The trial judge has great discretion in dividing the property and he is not to use the property division to punish one of the parties. Storm, supra. When there are adequate assets to comfortably provide for both of the parties, the trial court does not abuse its discretion when it refuses to permit the parties to air their dirty laundry in court.

The credit-card debt.

The wife argues that the divorce court may not adjust her rights against those of a creditor during the divorce action. However, we consider this argument inapplicable to the facts of this case since there is no argument that the credit-card debt is not valid. A division of the marital estate of necessity involves an assignment of assets and liabilities.

We see no need to discuss whether or not the assignment of this liability to the wife instead of to the husband was fair. A property division must be judged on an overall basis. Piper, supra. It is unreasonable to suggest that our determination of whether the trial judge abused his discretion in dividing all of the property and liabilities of the Pauls could turn on the assignment of a $2,300.00 credit-card debt.

Award of attorneys’ fees to the wife.

The husband protests the award of $10,000.00 to the wife for attorneys’ fees on the grounds that there is no proof that the fees were reasonable. The record reflects that lawsuits for divorce were filed in Arkansas and Pennsylvania, as well as Wyoming. The fight over the division of property was complicated. We note that the husband informed the court that he had incurred $87,000.00 in attorneys’ fees as a result of the divorce. The wife testified that she had incurred Wyoming attorneys’ fees of more than $14,000.00. Mrs. Paul’s Wyoming counsel told the court that the wife’s total attorneys’ fees were on the order of $75,000.00. In his decision letter, *716the trial judge states that the Pennsylvania attorneys’ fees were ridiculous. The court emphasized that it was not describing the Wyoming attorneys’ fees as ridiculous. The judge computed the wife’s Wyoming attorney’s fees to be $13,000.00. Given the complexity of the case and the undisputed fact that very large attorneys’ fees were incurred by both parties, we think the trial court had more than adequate ground for justifying an award of $10,000.00 to plaintiff’s attorney for attorney fees.

Corporate ownership of the furnishings.

The husband objects that the property division included an award to the wife of some furniture allegedly owned by a corporation of which the husband was chairman of the board and of which he owned 40 percent or more of the stock. The furniture was among that removed by the wife from the corporation lodge property near Dubois after she was forced from occupancy thereof by virtue of a writ of possession issued in another civil action. The trial court requested the husband to specify the property claimed. The court stated in its opinion letter:

“The Court has never heard from the husband with respect to the property he alleged the wife took from the Dubois property.
“In view of the husband’s inaction with respect to these matters the Court takes the position that the wife may have the items listed on Exhibit A and the husband has abandoned his claim, if any he ever had, that the wife took any property from the Dubois property to which she was not entitled.”

We find nothing in the record upon which to dispute this finding. We further note that the husband’s legal argument on this point consisted of a quotation from the Wyoming Constitution. Such perfunctory argument could be considered insufficient to merit our attention. E. g., Elder v. Jones, Wyo., 608 P.2d 654, 660 (1980).

Arbitrary action by the trial court.

As mentioned earlier, the trial court awarded the wife a lengthy list of furnishings, as well as decreeing that the husband had abandoned any claim he might have to furnishings from the Dubois residence. The husband appeals and claims that the trial judge acted arbitrarily. The trial judge has great discretion in making a property division and we do not find it to have been abused in making this distribution.

The judgment of the trial court is affirmed.

. Redundant, but still real, is the defendant’s obligation to furnish the trust with a sum of mony which will do two things:

(a) Furnish the plaintiff $20,000.00 a year.
(b) Be intact at the end of 34.2 years and available for the child of the parties at that time.

The dreamers might say that in this day and age of high interest rates, this will take only $200,000.00. Most of the members of this court remember when it would have taken $400,000.00 — and it might again!!

. This figure is based upon the optimistic assumption that the trust can be funded from $200,000.00. See, fn. 1, supra.

. The amount received by the wife and child is greater than the amount the court ordered the husband to pay because the district judge wisely caused the trust to be established so that a minimum sum of money could be invested to serve two purposes — income for the wife and a sum certain for the child when the purpose of the trust had, in the wife’s behalf, been served.

. We note that Mr. Warren’s obligation was to pay a sum certain each month, while retaining the use of his remaining funds for his own investment and income purposes. Mr. Paul, on the other hand, was ordered to deposit a sum in trust (which, under present interest rates we assume to be at least $200,000.00), thus forever depriving him of the income from the investment in favor of his wife and child. It can thus be seen that Mrs. Paul not only received more than three times as much as Mrs. Warren on a yearly basis, but Mr. Paul was deprived of his capital in order to fund his obligation to wife and child, while Mr. Warren was not.