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Ryan v. Ryan
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1997 ME 136 
Docket:	Han-96-638
on Briefs:	April 25, 1997
Decided:	June 25, 1997



	[¶1]  Kevin J. Ryan appeals from the judgment entered in the
Superior Court (Hancock County, Marsano, J.) granting a divorce to the
parties and awarding alimony to Patricia G. Ryan.  Kevin argues the alimony
award is erroneous because it inappropriately considers the potential
financial impact of his impending retirement.  We agree, and modify the
	[¶2]  The Ryans were married for almost thirty years when the court
heard Patricia's divorce complaint in 1996.  At that time Kevin was 60 years
of age and she was 51.  During the marriage Patricia assumed the role of
homemaker and Kevin pursued his career maintaining electronic equipment
for the United States Navy.  Kevin's job required the family to live in
different parts of the world, and his present employment contract obligates
him to live and work in Guam.  Patricia has worked as a secretary since she
and Kevin separated.  
	[¶3]  Kevin and Patricia had a substantial amount of tangible and
intangible personal property, which the court divided roughly equally.  The
court also set aside to Kevin his entire retirement pension fund, but
required him to make a payment to Patricia to effect a substantially equal
distribution of the marital assets.  Based on its value at the time of the
divorce, the fund would provide Kevin with a monthly benefit of $1,737 on
his retirement.  
	[¶4]  In considering alimony for Patricia, the court noted that her
earning capacity was far less than that of Kevin.  His base salary was $71,000
and he received a variety of incentive payments that substantially increased
his income when he was on foreign assignments.  For example, in 1995 he
earned $140,000, and in 1996 he expected to earn about $120,000.  The
court concluded that during Kevin's remaining "life work expectancy" he
could reasonably be expected to earn at least $100,000 per year.  The court
also found, however, that Kevin intended to retire "in the not too distant
future."  Kevin testified that he hoped to retire within a couple of years and
would remain in Guam until that time.  With regard to Patricia's earnings,
the court found her maximum potential to be $30,000 per year.  
	[¶5]  The court cited the following factors as important to its alimony
determination:  The thirty-year length of the marriage, Kevin's ability to pay,
Patricia's contributions for many years as a homemaker, and the parties'
higher-than-average standard of living during the marriage.  The court also
noted that Kevin had increased his earnings by undertaking "hardship
tours" of employment, and that he had a "right to cease that activity within a
reasonable time given his age and desire to retire."  Based on those
considerations, the court ordered Kevin to pay alimony of $1,500 per month
"until such time as [he] retires."  Thereafter, Kevin was ordered to make
monthly payments of $1,200.  
	[¶6]  An award of alimony is addressed to the sound discretion of the
trial court and is reviewed for an abuse of its discretion.  Noyes v. Noyes, 662
A.2d 921, 922 (Me. 1995).  We will not disturb the court's decision as to
alimony unless it violates some positive rule of law or has reached a result
that is plainly and unmistakably an injustice.  Sewall v. Snook, 687 A.2d 234,
235 (Me. 1996).  Alimony must be "reasonable both in amount and in the
method of payment giving regard to the situation, both at present and for
the foreseeable future, of both spouses."  Klopp v. Klopp, 598 A.2d 462, 464
(Me. 1991) (citing Bryant v. Bryant, 411 A.2d 391, 395 (Me. 1980)).  In
determining an award of alimony, the court is required to consider the
factors enumerated in 19 M.R.S.A. § 721 (Supp. 1996).{1}  
	[¶7]  The facts of this case pose a number of unanswered questions
that have an important impact on Kevin's alimony obligation after his
retirement.  In particular, Kevin's retirement date is a matter of speculation. 
Given his income from employment, his ability to afford post-retirement
alimony could be significantly enhanced if he chooses to work a few more
years.  Also unknown at this time is Kevin's post-retirement income, which
could be influenced by how much longer he works.  In addition, it is highly
speculative to predict how much Patricia will be earning after Kevin's
retirement, whenever that occurs.  None of these variables can be measured
appropriately until Kevin actually retires.  
	[¶8]  We conclude that the court prematurely attempted to weigh
these factors.  Although the determination of alimony requires the court to
consider the employment and income potential of each party, the court's
approach in this case effectively forecloses Kevin's ability to seek a future
modification of alimony based on the economic circumstances that will
prevail after his retirement.  Such a result is a plain and unmistakable
injustice.  Sewall v. Snook, 687 A.2d at 235.  The court simply looked too far
into the future by trying to fix the economic consequences of Kevin's
retirement, an event that could have a substantial impact on his alimony
obligation.  A more appropriate approach would be to leave the $1,500 per
month alimony award in place without providing a reduction on Kevin's
retirement, thus preserving the ability of either party to reopen the relevant
economic issues at a more propitious time.  
	The entry is:

Judgment vacated.  

Remanded with instruction to amend the
judgment to delete any provision for the
reduction of alimony payments on the
retirement of Kevin Ryan. 

Attorney for plaintiff: Roberta S. Kuriloff, Esq. Platner & Kuriloff 20 Oak Street Ellsworth, ME 04605 Attorney for defendant: Roger G. Innes, Esq. P O Box 240 Mt. Desert, ME 04660-0240
FOOTNOTES******************************** {1}. That section provides: § 721. Alimony 1. Factors. The court shall consider the following factors when determining an award of alimony: A.The length of the marriage; B. The ability of each party to pay; C. The age of each party; D.The employment history and employment potential of each party; E. The income history and income potential of each party; F. The education and training of each party; G.The provisions for retirement and health insurance benefits of each party; H.The tax consequences of the division of marital property, including the tax consequences of the sale of the marital home, if applicable; I.The health and disabilities of each party; J.The tax consequences of an alimony award; K.The contributions of either party as a homemaker; L.The contributions of either party to the education or earning potential of the other party; M.Economic misconduct by either party resulting in the diminution of marital property or income; N.The standard of living of the parties during the marriage; and O.Any other factors the court considers appropriate.