Ferguson v. Ferguson

Mr. Justice PARKER

delivered the opinion of the court.

On May 22, 1963, Evelyn Ferguson (since remarried and now named Villines) was granted a divorce from Martin W. Ferguson and given custody of three minor children. A property settlement, theretofore agreed upon by the parties and made a part of the decree, provided in part that Mr. Ferguson would contribute “sufficient financial assistance to each child after the child’s graduation from an accredited high school to enable him or her to attend the State University, said financial contribution for college education to be contingent upon the Husband’s financial ability to then provide such financial assistance.”

On July 7, 1969, Mrs. Villines, now living in Des Moines, Iowa, filed a petition for an order to show cause, alleging that defendant was financially able to pay for his daughter’s college education but had after January 1969 refused to make further payment toward her education. The matter was heard in September, the parties proceeding in the trial court on the theory that the defendant had the burden of proving his financial inability. The district court found generally against the plaintiff and dismissed her order to show cause; plaintiff has appealed arguing that (1) defendant did not meet the burden of proving he was without financial ability to pay the current college expenses for his daughter (approximately $2,000 annually), (2) the trial court did not properly consider defendant’s assets in determining his ability to provide support, and (3) when husband and wife enter into a property settlement agreement which provides for the support of their children that contract should be interpreted in the children’s best interest, which in this case is to provide for them at this time a college education.

According to the evidence Mr. Ferguson owns a minority interest in Walter C. Ferguson & Sons, Inc., which at this time has assets of $839,950 and liabilities of $351,-000. When the original divorce decree issued Mr. Ferguson was drawing annually a $3,600 salary from the corporation, and at the time of the subsequent hearing, $4,500. It was established that there was no possibility of the corporation paying a higher salary unless it borrowed funds and that Mr. Ferguson had been told by his banker that because of lack of collateral he personally could not borrow from $1,500 to $3,000. In the banker’s testimony as to the corporation’s finances and Mr. Ferguson’s shares in the corporation, his explanation was clear that although loans were made on a person’s net worth liquid assets were requisite to the extension of credit.

Essentially it is the position of the plaintiff here-under her first and second points that the corporation worth and Mr. Ferguson’s interest therein as a stockholder is prima facie evidence of ability to pay the $2,000 annually for his daughter’s education. Were this a matter of Mr. Ferguson’s having, since the divorce, set up the corporation, we might agree; however, it is one of long standing and Mr. Ferguson is only a minority stockholder. Plaintiff also argues that this court cannot rely solely on the testimony of the banker who said he would not loan $1,500, that it was to the best interests of all concerned for him to arbitrarily turn down a loan, and in effect the turndown became a self-serving declaration; additionally, she asserts there was ambiguity as to Mr. Ferguson’s ownership together with his brother and sister of some land.

We find no merit in plaintiff’s arguments. Competent evidence was adduced by defendant showing his financial inability. This established a prima facie showing which was entitled to stand unless controverted. If, indeed, evidence was available which would have refuted his proof, it was incumbent upon plaintiff to produce it at the trial. This she failed to do.

In Chorney v. Chorney, Wyo., 383 P.2d 859, 860, we observed it long to have been the rule here that determination of matters of support of minor children (and subsequent contempt proceedings) rests largely in the discretion of the trial court. We also stated in that case, 383 P.2d at 860-861, that the district judge’s conclusions are quite persuasive where, as in the instant proceeding, the judge rendering the decision was the same judge who presided at the trial of the divorce case, entered the divorce decree, and approved the pertinent agreement.

In fine, although we accede to plaintiff’s third point as to the interpretation of the contract in the children’s best interests, we cannot agree with her that defendant failed to satisfy the burden of showing he lacked financial ability to pay his daughter’s college expenses, and at the appellate level we cannot interject without supporting evidence independent views in that regard.

Affirmed.