Madsen v. Madsen

MEMORANDUM DECISION
(Not For Official Publication)

Scott Eugene Madsen,
Plaintiff and Appellant,

v.

Shauna Marie Bullock Madsen,
Defendant and Appellee.

Case No. 971680-CA

F I L E D
(November 19, 1998)
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Second District, Farmington Department
The Honorable Michael G. Allphin

Attorneys:
Phillip W. Dyer and Kevin C. Timken, Salt Lake City, for Appellant
D. Michael Nielsen and David J. Peters, Bountiful, for Appellee -----

Before Judges Wilkins, Greenwood, and Orme.

GREENWOOD, Judge:

Scott Eugene Madsen appeals the trial court's award of alimony and attorney fees. We affirm in part and reverse in part and remand for further findings on the awards of alimony and attorney fees.

Alimony

We will not disturb a trial court's award of alimony unless "a clear and prejudicial abuse of discretion is demonstrated." Rasband v. Rasband, 752 P.2d 1331, 1333 (Utah Ct. App. 1988). Although trial courts are given broad latitude in awarding alimony in a divorce proceeding, an award of alimony unsupported by sufficient findings constitutes an abuse of discretion. In this case, the trial court listed Mr. Madsen's expenses without explaining the reason for reducing some of the amounts from those submitted by Mr. Madsen. Although a trial court need not accept as true the financial statements of a party simply because the statement is received into evidence, see Willey v. Willey, 951 P.2d 226, 231 (Utah 1997), it is required to support, with appropriate findings of fact, any adjustments made to the uncontroverted financial statements of a party. Cf. Marchant v. Marchant, 743 P.2d 199, 207 (Utah Ct. App. 1987) (holding trial court abused discretion by rejecting, without explanation, plaintiff's claim for alimony). Therefore, we remand this issue to the trial court for appropriate findings and any necessary adjustment in the alimony award.

Similarly, Mr. Madsen challenges the trial court's refusal to include property taxes, insurance and maintenance costs in his monthly expenses. The undisputed evidence submitted was that Mr. Madsen is responsible for these expenses. In addition, because Mr. Madsen has legal title to the home as a joint tenant and is obligated on the mortgage,(1) he is legally responsible for taxes, insurance and maintenance costs on the home. Therefore, the trial court erred as a matter of law in refusing to include these costs in Mr. Madsen's monthly expenses. See Massey v. Prothero, 664 P.2d 1176, 1178 (Utah 1983) (holding all cotenants owe a duty to pay taxes).(2) Therefore, on remand, the trial court should include $147 in Mr. Madsen's monthly expenses, and adjust the alimony award accordingly.

Mr. Madsen further argues the trial court erred in awarding alimony without considering the length of the marriage, as required under Utah Code Ann. 30-3-5(7)(a)(iv) (Supp. 1998). We disagree. In awarding alimony "in the sum of $550.00 per month for a period equal to the length of thirty-five months, which was the length of the parties' marriage," the trial court clearly considered the length of the marriage in awarding alimony. Additionally, we believe the trial court properly considered the relevant factors in awarding alimony, see Lee v. Lee, 744 P.2d 1378, 1382 (Utah Ct. App. 1987), and therefore did not abuse its discretion regarding this issue.

Mr. Madsen also contends it was error for the trial to consider fault in awarding alimony to Mrs. Madsen. He contends a trial court may not consider fault in awarding alimony because the purpose of alimony is to provide spousal support, not to punish either of the parties. See English v. English, 565 P.2d 409, 411 (Utah 1977). While it is true that Utah courts have consistently held that the purpose of alimony is for spousal support, the Utah Legislature has recently enacted a statute stating that trial courts "may consider fault of the parties in determining alimony." Utah Code Ann. 30-3-5(7)(b) (Supp. 1998) (emphasis added). Thus, the cases cited by appellant which pre-date the statute are inapposite and the trial court acted within its discretion in considering Mr. Madsen's acts of violence which lead to the destruction of the marriage.

As a final challenge, Mr. Madsen argues the trial court was required to restore the parties to their financial condition before the marriage, pursuant to Utah Code Ann. 30-3-5(7)(f) (Supp. 1998). We disagree because this argument is contrary to the statute's plain meaning. See In re Worthen, 926 P.2d 853, 866 (Utah 1996) (holding court must first look to plain meaning when interpreting statute.) Section 30-3-5(7)(f) provides "[i]n determining alimony when a marriage of short duration dissolves, and no children have been conceived or born during the marriage, the court may consider restoring each party to the condition which existed at the time of the marriage." Utah Code Ann. 30-3-5(7) (Supp. 1998) (emphasis added). The term "may" is permissive and gives the trial court discretion to restore the parties to their condition prior to the marriage. See Crockett v. Crockett, 836 P.2d 818, 820 (Utah Ct. App. 1992) (citation omitted) (holding "may" is permissive and "should receive that interpretation unless such a construction would be obviously repugnant to the intention of the Legislature or would lead to some other inconvenience or absurdity."). Thus, the trial court acted within its discretion in awarding alimony and distributing property without restoring the parties to their condition prior to the marriage.

Attorney Fees

Mr. Madsen challenges the trial court's award of $2,000 contending the amount was unreasonable. The decision to award attorney fees in divorce proceedings and the amount of those fees is within the sound discretion of the trial court. See Crouse v. Crouse, 817 P.2d 836, 840 (Utah Ct. App. 1991). Consequently, we review the decision to award attorney fees under an abuse of discretion standard.

At trial, Mrs. Madsen's attorney presented testimony explaining why $3,900 in fees was a reasonable charge in this case. Based on this testimony and on its finding that Mr. Madsen has equity in the Bountiful home, the trial court ordered him to pay $2,000 in attorney fees. Because the trial court failed to explain its reduction in the amount of fees requested, and did not specify in its findings why $2,000 was reasonable, we remand this issue to the trial court for further findings supporting its award.(3) See Foxley v. Foxley, 801 P.2d 155, 158 (Utah Ct. App. 1990) (reversing award of attorney fees where there was "no admissible evidence in the record to substantiate the reasonableness of amount awarded"); Martindale v. Adams, 777 P.2d 514, 517-18 (Utah Ct. App. 1989) (holding error to award less attorney's fees than requested "without finding the request unreasonable or offering any explanation as to the basis for the reduction.").

Finally, Mrs. Madsen requests attorney fees on appeal. Because she has only prevailed in part on appeal, we hold that each party is responsible for his or her own attorney fees. See Marshall v. Marshall, 915 P.2d 508, 517 (Utah Ct. App. 1996) (holding "[g]enerally, when fees in a divorce case are granted to the prevailing party at the trial court, and that party in turn prevails on appeal, then fees will also be awarded on appeal.").

Conclusion

We reverse the trial court's refusal to include property taxes, insurance and maintenance costs in Mr. Madsen's monthly expenses. We remand for appropriate findings and adjustment of the awards of alimony and attorney fees. In all other respects, we affirm the trial court's ruling.
 

______________________________
Pamela T. Greenwood, Judge

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WE CONCUR:
 

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Michael J. Wilkins, Associate Presiding Judge
 

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Gregory K. Orme, Judge

1. We note that the trial court's finding that Mr. Madsen was not responsible for these costs is entirely inconsistent with the finding that he has the ability to pay attorney fees because he has equity in the home which he can borrow against.

2. Any testimony by Mr. Madsen's mother that she intended to convey title to him only after her death does not change the legal impact of the Quit Claim Deed she executed.

3. The trial court may consider Mr. Madsen's motion to admit into evidence the affidavit of attorney fees.