Tracey Kamm v. Jason Kamm , 2016 WY 8 ( 2016 )

IN THE SUPREME COURT, STATE OF WYOMING
2016 WY 8
OCTOBER TERM, A.D. 2015
January 21, 2016
TRACEY KAMM,
Appellant
(Plaintiff),
v. S-15-0101
JASON KAMM,
Appellee
(Defendant).
Appeal from the District Court of Laramie County
The Honorable Steven K. Sharpe, Judge
Representing Appellant:
Donna D. Domonkos of Domonkos Law Office, LLC, Cheyenne, WY.
Representing Appellee:
Linda J. Steiner and Abigail E. Fournier of Steiner Law, LLC, Cheyenne, WY.
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
HILL, Justice.
[¶1] Tracey Kamm appeals the district court’s alimony decision, claiming that to deny
her alimony was an abuse of the court’s discretion. We will affirm the district court.
ISSUE
[¶2] Tracy Kamm presents one issue for our review:
The district court abused its discretion when it denied [her]
request for alimony.
STANDARD OF REVIEW
[¶3] We review the district court’s decision on alimony for abuse of discretion:
There are few rules more firmly established in our
jurisprudence than the proposition that disposition of marital
property, calculation of income for child support purposes,
and the granting of alimony are committed to the sound
discretion of the district court. Johnson v. Johnson, 11 P.3d
948, 950 (Wyo. 2000). Judicial discretion is a composite of
many things, among which are conclusions drawn from
objective criteria; it means exercising sound judgment with
regard to what is right under the circumstances and without
doing so arbitrarily or capriciously. Id.; Vaughn v. State, 962
P.2d 149, 151 (Wyo. 1998). We must ask ourselves whether
the trial court could reasonably conclude as it did and whether
any facet of its ruling was arbitrary or capricious. Johnson,
11 P.3d at 950. In accomplishing our review, we consider
only the evidence in favor of the successful party, ignore the
evidence of the unsuccessful party, and grant to the successful
party every reasonable inference that can be drawn from the
record. Id.
Opitz v. Opitz, 2007 WY 207, ¶ 7, 173 P.3d 405, 407-
408 (Wyo. 2007) (quoting Belless v. Belless, 2001 WY 41,
¶ 6, 21 P.3d 749, 750-751 (Wyo. 2001)).
Levene v. Levene, 2014 WY 161, ¶ 12, 340 P.3d 270, 273 (Wyo. 2014).
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FACTS
[¶4] Jason Kamm (Husband) and Tracy Kamm (Wife) married in 2001. Though their
marriage did not produce any children, Husband adopted Wife’s two children from a
prior marriage. Those children are now emancipated. During the marriage, Husband
worked as a physical therapist and Wife worked inside the home. Wife suffers from a
myriad of medical conditions, including PTSD, lupus, fibromyalgia, spinal arthritis, and
depression.
[¶5] In 2013, Wife filed for divorce. She stayed in the marital home, while Husband
paid the mortgage and other bills. In February of 2014, the district court ordered
Husband to pay alimony of $3,000.00 per month, as well as $3,000.00 in attorney’s fees.
While the divorce was pending, Wife was denied Social Security disability and began
working part-time.
[¶6] The case proceeded to trial on November 12, 2014. The court ruled as follows:
Mr. Kamm appears to enjoy good health. During the trial, the
court heard substantial testimony about Mrs. Kamm’s health.
The court finds that Plaintiff presented credible evidence that
she has historically suffered from various medical conditions,
including lupus, post-traumatic stress disorder (PTSD), and
depression. The Plaintiff did not present credible evidence,
however, that her medical conditions are debilitating, or that
they prevent her from seeking and obtaining employment.
Significantly, the Plaintiff did not present any testimony from
a medical expert opining that Plaintiff is occupationally
incapacitated or physically incapable of holding any job.
Plaintiff called two health care providers during the trial: Dr.
Haug (a psychologist and expert on PTSD) and Stacy Davis
(an acupuncturist). Ms. Davis testified that she has treated
the Plaintiff for over one year, and that she has seen
improvement in the Plaintiff’s condition over that time
period. She testified that Plaintiff has not experienced any
“flare ups” or problems with her autoimmune disorders, and
that her treatment focus has been on addressing Plaintiff’s
insomnia, anxiety and fatigue related to her PTSD. Ms. Davis
testified that she has seen an improvement in those areas as
well. Dr. Haug testified Plaintiff’s PTSD presents a
“significant disability” that does impact her ability to obtain
employment. Despite those limitations, however, Dr. Haug
testified that PTSD can be managed “very well,” and that
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Plaintiff has the ability to find employment in a “very quiet,
very predictable environment.” In that regard, the court finds
it significant that Plaintiff has previously demonstrated an
ability to work in jobs outside of her home even after the
traumatic events from her first marriage. Plaintiff testified
that she met Defendant in 2001, while she was working at the
Buffalo Bill Museum in Cody. Plaintiff has also recently
taken a part-time position at Michaels. In short, the court
finds that Plaintiff has the ability to seek and obtain
appropriate employment, despite the limitations imposed by
her medical conditions.
[¶7] Specifically regarding alimony, the court stated as follows:
Plaintiff has requested that this court award her monthly
alimony of $3,500.00 for a period of five (5) years. Applying
legal standards …, the court does not find in the record a
justification for awarding that amount of alimony for such a
long duration. …[T]he court finds that Plaintiff has the
ability to find employment that would accommodate her
medical limitations. Furthermore, … [Plaintiff] has not
exercised appropriate diligence to secure employment since
filing her divorce complaint. The court also finds that it is not
“just and equitable” under the facts and circumstances of this
case to order Defendant to continue to pay alimony in the
amount of $3,000 a month, as he has been doing since March
of 2014. [The Wyoming] Supreme Court has made clear that
an award of marital property is a preferable substitute [to]
alimony, and that “one spouse should not have a perpetual
claim on the earnings of the other; that divorce, insofar as
possible should sever the ties of the parties and they should
begin to start their lives anew.” Grosskopf v. Grosskopf, 677
P2d 814, 821 (Wyo. 1984).
In this case, the court has awarded [Wife] half of the
equity in the marital home as well as half of [Husband’s]
retirement account. The court believes this award will assist
[Wife] in her financial transition in the wake of this divorce.
Furthermore, the court notes that [Husband] is presently
working four different jobs; drives a fifteen-year old vehicle;
and is living in a mobile home. [Husband] should not be
required to continue to work four jobs to provide alimony to
[Wife] who has the ability to work.
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The court further ordered a limited and reduced alimony payment of $1,000.00 per month
for three months beginning January 1, 2015. This appeal followed.
DISCUSSION
[¶8] Wife argues that the district court abused its discretion in not awarding her
alimony. She submits that her alimony request was reasonable because she placed a five-
year time limit on the request. She points to Husband’s gross income of $8,100.00 per
month and claims that because he has the ability to pay, alimony is proper. Wife also
challenges the district court’s property division, and argues with its finding that she is
able to work. She claims she is de facto unemployable, and faults the court for criticizing
her treatment of her PTSD with acupuncture.
[¶9] Husband counters that the district court did not abuse its discretion in deciding
alimony and submits that he does not have the ability to pay. Husband points to his
living in a mobile home and driving an old car, and working several jobs with long hours.
Husband also argues that Wife does not need alimony and that she has the skills and
education to be employable in at least two fields. Husband also argues that Wife has
failed to paint the complete picture and that the property division was fair.
[¶10] We have said regarding alimony,
The purpose of alimony is to provide a post-divorce substitute
for the support provided to a spouse during the marriage.
[Johnson v. Johnson, 11 P.3d 948 at 951 (Wyo. 2000)]. It is
for the support and maintenance of a former spouse who is
unable to adequately provide for himself or herself. Id. An
award of property is a preferable modern substitute for
alimony. Id. While in some cases alimony may be a
necessity, “under ordinary circumstances it should be
recognized that one spouse should not have a perpetual claim
on the earnings of the other; that divorce, insofar as possible
should sever the ties of the parties and they should begin to
start their lives anew.” Grosskopf v. Grosskopf, 677 P.2d 814,
821 (Wyo. 1984). When alimony is awarded in the absence
of a stipulated settlement between the parties, the record must
reflect some evidence that alimony, with its special features,
is needed. Johnson, 11 P.3d at 951. If the intent is to adjust
the equities between the parties at the time of the divorce,
property division, which may encompass a series of
payments, is the preferable method. Id.
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Stevens v. Stevens, 2014 WY 23, ¶ 15, 318 P.3d 802, 807-808 (Wyo. 2014). We are also
guided by Wyo. Stat. Ann. § 20-2-114 (LexisNexis 2015) in alimony cases:
§ 20-2-114. Disposition of property to be equitable;
factors; alimony generally.
(a) ... [I]n 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 either
party reasonable alimony out of the estate of the other having
regard for the other’s ability to pay and may order so much of
the other’s 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 either party.
We applied these tenets in Stevens, to which Wife compares the instant case and urges
this Court to recognize the similarities and award temporary alimony.
[¶11] In Stevens, father took issue with the district court’s alimony award to mother,
who maintained a tax and bookkeeping practice. This Court noted the large difference in
the parties’ incomes–father earned over $20,000.00/month and mother earned less than
$1,000.00/month. Ultimately, this Court approved the trial court’s highly tailored
alimony award:
… [I]t is entirely within the discretion of the trial court to
award alimony during a transition period wherein the party
requesting alimony may gain special skills, education, or
experience to enable the party to raise his or her earning
capacity. Because of Mother’s dedication as a stay at home
mom the period allowed for alimony [five years] allows her
to regain her ground as an employable CPA. Last but not
least, of course, is Father’s ability to pay. Father’s monthly
income at the time of trial was $23,670.22 compared to
Mother’s $943.41. Trial testimony proved Father had the
ability to pay…
Based upon the earning potential of each party we
conclude that $2,000.00 per month for five years is not
beyond the bounds of reason.
Stevens, ¶¶ 16-17, 318 P.3d at 808 (emphasis in original).
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[¶12] We find the facts of Stevens and this case dissimilar. First, we look to the ability
of the payor spouse, in this instance, Husband. “[I]n determining whether a spouse is
entitled to be awarded alimony, the trial court considers objective criteria including the
ability of the payor spouse to pay and the necessity of support of the payee.” Johnson v.
Johnson, 11 P.3d 948, 950 (Wyo. 2000) (quoting Neville v. Neville, 8 P.3d 1072, 1073
(Wyo. 2000)). In Stevens, the discrepancy between the parties’ incomes was over
$20,000.00 per month. Here, the difference is about $8,000.00 per month and during the
fifteen months leading up to the divorce, Husband paid $91,230.00 toward the parties’
joint financial obligations, as well as paying Wife temporary alimony of $3,000.00 per
month. In order to make ends meet, Husband lived in a mobile home, drove a fifteen-
year-old car and worked four jobs. He worked six days per week, resulting in 60-70 hour
work weeks. Scaling back to his one main job, Husband grossed $8,100.00 per month
and testified his monthly expenses were $7,500.00.
[¶13] Taking Husband’s ability to pay into account, we turn to the necessity of the
receiving spouse in this case. Indeed, alimony is “for the support and maintenance of a
former spouse who is unable to adequately provide for himself or herself.” Stevens, ¶ 15,
318 P.3d at 807. Wife contends that she is “de facto” unemployable and cites to a
worker’s compensation case in support of her argument. While we appreciate Wife’s
attempt to cite pertinent case law, a worker’s compensation case is inapplicable in this
instance. That said, we will attend to Wife’s contention that she is “de facto”
unemployable.
[¶14] At trial, Wife presented two witnesses who testified as to her medical conditions.
First, Wife’s psychologist testified that Wife has PTSD, but that “can be managed very
well.” The psychologist also testified that it was his belief that she will continue to
improve and is capable of working given the right circumstances. He also testified as
follows:
Q: Now, tell me what you mean. Could she – talk about
employment. Could she work? What kind of employment
could she do, if any?
A: You know, Tracey’s a bright woman. I think she’s – you
know, it isn’t about intellectual ability. It is about emotional
capabilities and feelings of trust or distrust in the world. I
could think if the job was very isolative, it didn’t involve the
public, if it was, you know, based out of her home would be
ideal or based out of a place she thought was safe, I think she
could do the work.
I think also because of some current concentration,
memory problems, I think if it was extremely time limited or
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time-intensified requirements, she would have difficulty with
that. But if it wasn’t, I think she could work in a very quiet,
very predictable environment.
Not only was there testimony that Wife could conceivably work, evidence was presented
at trial showing that Wife previously earned her Master Herbalist degree as well as a
reflexology certificate. Wife’s experience also included earning college credit and
development of a website.
[¶15] Wife counters Husband’s above points by again comparing her case to Stevens.
However, we conclude that there are differences in Stevens such that we cannot conclude
there was an abuse of discretion in this case. In Stevens, mother attempted and failed to
find employment, compared to no attempt by Wife to find employment in her related
field. Also in Stevens, mother was still caring for two young children, whereas here, the
children have left the home. Though Wife asserts that she was not able to build a career
during the marriage, as was the case in Stevens, we point out that her schooling was done
during the marriage. While these differences may seem nominal, the trial court is in the
best position to assess the witnesses’ credibility and weigh their testimony. Raymond v.
Raymond, 956 P.2d 329, 332 (Wyo. 1998). We, therefore, give considerable deference to
its findings. Id.
[¶16] Finally, our conclusion that the district court did not abuse its discretion in not
awarding alimony is bolstered by the district court’s division of property. The court
equally divided the marital home equity and also gave Wife half of Husband’s retirement
account. The court also awarded to Wife the newer vehicle of the two at issue. In doing
so, the trial court heeded this Court’s previous statement that while in some cases
“alimony [may be] a necessity, ... under ordinary circumstances it should be recognized
that one spouse should not have a perpetual claim on the earnings of the other; that
divorce, insofar as possible should sever the ties of the parties and they should begin to
start their lives anew.” Grosskopf, 677 P.2d at 821.
CONCLUSION
[¶17] The district court is affirmed.
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