S. Ct. Civ. No. 2012-0090

Orders of the Superior Court requiring a former husband to pay alimony to his ex-wife and setting an amount, in light of a multi-factor test stated in prior case law, are reversed. The Superior Court is authorized under 16 V.I.C. § 109 to award alimony in a divorce case without regard to any determination that the breakdown of the marriage was the fault of one party or the other, and to determine the amount necessary for support and maintenance of a party, shifting the law governing alimony from a fault-based system to a more contemporary need-of-the-spouse scheme. In addition, 16 V.I.C. § 341 provides that an alimony award shall include all that is indispensable for maintenance, housing, clothing and medical attention according to the social and economic position of the family which, under 16 V.I.C. § 345(a), is to be proportioned to the resources of the person giving such support and to the necessities of the party receiving it. Thus the Superior Court should consider all factors to determine if the parties will be similarly situated after their divorce. If this general comparability of resources and capacity is shown, then that should be the end of the matter. But if the divorce causes a disparity between the former spouses, the court should fix a gross or installment alimony award that strikes the appropriate balance between the party in need of support, as defined by section 341(g), and the other party's ability to pay. It should not simply look at the parties' current finances, but may consider their potential for future earnings based on educational background, employment history, and other relevant factors as well as the social and economic position of the family. The Superior Court is afforded a great deal of discretion in its ultimate determination, but in this case it erred in failing to make findings as to the former husband's potential future earnings, and in relying on its own independent recollection of media accounts of the opportunities provided to refinery workers as a basis for rejecting the husband's testimony. Since the uncontradicted evidence in the record established an expiration date for the husband's contract, the Superior Court should have determined his ability to pay based the severance sum, and other known assets, and-if and only if supported by competent, admissible evidence-any imputed income resulting from a finding of willful unemployment or a bad faith or neglectful job search. Accordingly, the alimony award is reversed and the case is remanded for further proceedings.