Murray v. Murray

GLASSMAN, Justice,

with whom SCOLNIK, Justice, joins, dissenting.

I must respectfully dissent. I agree with the court that Randall made a timely request for findings to support the award of alimony pursuant to M.R.Civ.P. 52(a). I would hold, however, that the judgment of divorce contained adequate findings on that issue, and the trial court did not err in denying Randall’s request. See Bradford v. Harris, 499 A.2d 159, 160 n. 1 (Me.1985). The judgment states that the divorce court “considered the financial status and abilities of the parties as well as the needs thereof” in ordering Randall to pay alimony of $200 per week. That statement amounts to a finding that Randall is able to pay that amount and Elizabeth has need for that amount.

The evidence supports these findings. Randall earned annual interest and dividend income of $1,800, plus a salary of $22,686. He also received benefits and perquisites from Murray Oil Co. that raised his real income from the company to $34,-416. His salary increased almost every year and he was sometimes given a bonus. Most importantly, as sole owner of an income producing business Randall had control over his income and benefits. For example, the company owned real estate, vehicles, heating oil, and telephones that were supplied to him or used by him for his personal needs.

Elizabeth, on the other hand, had consistently earned less than her husband and testified that she had an uncertain future at her current job. She had always taken primary responsibility for caring for the children and as a result had to forego continuing education courses and turned down two desirable job offers during the marriage. It had been necessary for her to borrow approximately $2,000 to meet living expenses and she was obligated for an additional approximate $2,000 for periodontal surgery. She testified that alimony would enable her to return to school for a needed degree. We have previously stated that a divorce court is vested with broad powers to order the payment of alimony so long as it is reasonable in amount and the court has “ ‘regard to [the payor] spouse’s ability to pay’ that we pay great deference to the trial court’s discretionary judgment as to what amount is “reasonable”; and that unless we can determine the trial court “violated some positive rule of law or has reached a result which is plainly and unmistakably an injustice that is ‘so apparent as to be instantly visible without argument,’ ” we must affirm. See Jacobs v. Jacobs, 507 A.2d 596, 600 (Me.1986) (citations omitted). Under this standard, it cannot be said that the trial court exceeded its discretion in setting the amount of the alimony obligation of Randall.

I would also affirm the divorce court’s characterization of the shares in Murray Oil Co. as Randall Murray’s separate property. The divorce court was not required to make findings as to the value of the company because neither party requested such findings. See Cushman v. Cushman, 495 A.2d 330, 335 (Me.1985). Moreover, the value of the company was not material to its characterization as marital or non-marital property.

Under 19 M.R.S.A. § 722-A(3) (1981) all property acquired during marriage by either spouse is presumed to be marital property unless acquired by a means listed in the preceding subsection (2). Here, Randall Murray had the burden of over-*1370coining the presumption that the 74 shares of Murray Oil Co. were marital property. Moulton v. Moulton, 485 A.2d 976, 977-78 (Me.1984). He met that burden by offering uncontradicted evidence that the shares were given to him as a gift. See 19 M.R. S.A. § 722-A(2)(A). That showing was one of fact and is reviewable only for clear error. See Moulton, 485 A.2d at 978.

Elizabeth Murray contends that the shares appreciated in value, and the appreciation is marital property. The evidence was conflicting as to the value of Murray Oil. The company’s accountant testified that the company’s debts exceeded the value of its assets. An accountant called by Elizabeth Murray testified that the company was worth $119,053 — an increase of $84,797 since the date of the gift. Elizabeth offered no evidence that the alleged increase in value was the result of a contribution of marital property or of her separate property or labor. On this record it cannot be said that the court erred in determining that the stock of Murray Oil was the sole and separate property of Randall without placing a present dollar value on that stock.

I would affirm the judgment of the Superior Court.