Zywiciel v. Zywiciel

Opinion

BEDSWORTH, J. Philip A. Zywiciel appeals from an order that awarded Susan A. Zywiciel permanent spousal support of $500 per month, increased child support and modified his visitation rights. He argues there was insufficient evidence to award spousal support, and the award was based on a figure generated by a computer program instead of the judge’s weighing of the prescribed statutory factors. We find ourselves forced to agree with him, and reverse.

Philip and Susan Zywiciel were divorced after a 19-year marriage. The judgment of dissolution incorporated the Zywiciel’s marital termination [1080]agreement, which did not include spousal support but instead provided that the court reserved jurisdiction on the issue. Susan received primary physical custody of their two minor daughters and Philip visitation rights, although the parents shared legal custody. Philip agreed to pay child support until each daughter reached the age of majority.

Six years later, Susan moved for spousal support, additional child support for the one child still living at home, and clarification of visitation rights. Her moving papers consisted of a form application for an order and a supporting declaration. In both the spousal support and child support sections of the form, next to the words “amount requested,” the word “guideline” is typed in rather than a dollar amount. Susan declared she needed spousal support because there was a “great disparity” between her income and Philip’s, and her expenses had increased because their older daughter—■ no longer the subject of child support payments—had been staying with her.

Philip declared, without contradiction, that the older daughter moved into her own condominium in early June, after a three-month stay, so that Susan’s increased living expenses were short-lived and over. He did not oppose the request for child support for the minor child.

The hearing was so informal that it was difficult to recognize as a hearing. Susan and Philip and their attorneys met with the judge, and the attorneys and judge talked. Susan and Philip were sworn as witnesses, but neither was called to testify. At one point, Susan was asked a few questions about her education, but Philip was never called upon to speak. Most of the “hearing” consisted of counsel providing figures and other information from the financial statements their clients had filed, which the judge plugged into the DissoMaster computer program used for calculating temporary spousal support.