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Vega v. Vega9/13/2000
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Leo contends the family court "committed error by refusing to award alimony to a totally disabled husband, . . . where: (A) the Court concluded that ' had the ability to earn additional income,' despite the unanimous conclusion of three physicians that was totally disabled as a result of a brain injury ; (B) the Court concluded that '[Kathleen] has no ability to pay spousal support,' despite the uncontradicted evidence that [Kathleen's] annual gross income was between $44,000 and $45,000, and the fact that [Kathleen's] Income and Expense Statement was withdrawn, thus depriving the Court of the ability to conclude that [Kathleen's] expenses exceeded her ability to pay alimony, as of the date of trial."
(A)
Two doctors opined that Leo was totally disabled and unable to work. In response to an inquiry from Leo's attorney in this case, Stewart Y. Matsumoto, M.D., F.A.C.C., wrote in relevant part as follows:
[Leo's] major disability revolves around a closed head injury which produced a left hemiparesis and seizure disorder. I have only cared for his cardiovascular problem.
recently underwent diagnostic cardiac catheterization for a positive treadmill stress test. Total occlusion of the right coronary artery was identified. An attempt at coronary angioplasty is planned in the future.
It is my opinion that the combination of his neurologic deficit which includes the seizure disorder and left hemiparesis compounded by his single vessel coronary artery disease makes totally and permanently disabled and unable to work. For his neurologic impairement , an appropriate neurologic specialist should be consulted.
Leo contends that the finding that he has the ability to earn additional income is clearly erroneous. His argument challenges the family court's Finding of Fact (FOF) No. 5 and Conclusion of Law (COL) No. 9. We disagree with Leo. These challenged findings are supported by his testimony and by FOF No. 2 which is not challenged in his points on appeal. (B)
Leo's second argument is that the family court should have awarded him spousal support because without spousal support, he does not have the ability to maintain the standard of living established during the marriage and Kathleen has the ability to pay spousal support. This argument challenges the family court's FOF No. 3 and CsOL Nos. 5, 6, and 8.
We affirm COL No. 5. Moreover, even assuming that Leo does not have the ability to earn sufficient additional income to maintain the standard of living established during the marriage, FOF no. 1 is not challenged in Leo's points on appeal and it conclusively establishes that Kathleen does not have the ability to pay spousal support. Therefore, Leo's point is without merit.
CONCLUSION
Accordingly, we affirm the family court's July 13, 1999 Order Denying Alimony.
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