Turner v. Turner

Turner v. Turner

IN THE UTAH COURT OF APPEALS

----ooOoo----

Melvon David Turner,

Plaintiff and Appellee,

v.

Di Ann Carol Turner,

Defendant and Appellant.

MEMORANDUM DECISION

(Not For Official Publication)

Case No. 971615-CA

F I L E D

(November 5, 1998)

-----

Fourth District, Heber Department

The Honorable Howard Maetani

Attorneys: Steven Kuhnhausen and Joseph F. Orifici, Salt Lake City, for Appellant

Terry L. Christiansen, Park City, for Appellee

-----

Before Judges Bench, Billings, and Orme.

BENCH, Judge:

Appellant argues that the trial court erred in failing to make adequate findings regarding appellant's voluntary underemployment. The trial court found that appellant "is employable, and able to work at a level above which she is currently employed." Thus, the trial court determined that appellant was voluntarily underemployed. See Utah Code Ann. § 78-45-7.5(7)(a) (1996); see also Hall v. Hall, 858 P.2d 1018, 1024 (Utah Ct. App. 1993) (noting that trial court does not need to "parrot the exact language of the statute"). After making the threshold determination regarding voluntary underemployment, the court imputed income based on historical earnings pursuant to section 78-45-7.5(7)(b) of the Utah Code. The record shows appellant worked many hours of overtime in 1994, but not thereafter. The parties separated in mid-1995. The trial court based the imputed income on 1995 historical earnings. In September 1996, two months before trial, appellant reduced her hours even further. After reviewing the record, we cannot say that the trial court abused its discretion by imputing income based on appellant's 1995 historical earnings.

Appellant also argues that the trial court failed to make findings regarding the unusual emotional needs of the children. Section 78-45-7.5(7)(d)(iv) provides that income may not be imputed if "unusual emotional or physical needs of a child require the custodial parent's presence in the home." Utah Code Ann. § 78-45-7.5(7)(d)(iv) (1996). This court may "affirm the trial court's decision to impute income, absent outright expression of the statutorily mandated finding, if the absent findings can reasonably be implied." Hall, 858 P.2d at 1025. Here, appellant did not present evidence of ongoing unusual emotional circumstances that required her presence in the home. Appellant testified that she reduced her work hours to care for the needs of her children. The children, however, were in school during most of the time that appellant stayed home. We conclude the trial court did not abuse its discretion by imputing income to appellant.

Appellant argues that the trial court erred in its child support award. First, appellant argues that appellee has failed to file a child support worksheet. Our review of the record, however, shows that appellee did file a worksheet with the trial court. Second, appellant argues the trial court abused its discretion by not making adequate findings in support of its child support award. Section 78-45-7.7(4) provides as follows:

The base combined child support obligation table provides combined child support obligations for up to six children. For more than six children, additional amounts may be added to the base child support obligation shown. Unless rebutted by Subsection 78-45-7.2(3), the amount ordered shall not be less than the amount which would be ordered for up to six children.

Utah Code Ann. § 78-45-7.7(4) (1996). The trial court found that "[b]ased on the incomes of the parties, child support will be set at $1,452.80 per month." This figure, for seven children, is $65.70 more than the amount required to support six children at the parties' income level. Because the trial court has broad discretionary powers in setting child support obligations in excess of the tables, we conclude the court did not abuse its discretion when it determined the amount of child support.

Appellant argues that the trial court abused its discretion by declining to award alimony to appellant and that the court failed to render appropriate findings. "It is well established that the '"function of alimony is to provide support for the [receiving spouse] as nearly as possible at the standard of living [he or] she enjoyed during the marriage, and to prevent the [receiving spouse] from becoming a public charge."'" Breinholt v. Breinholt 905 P.2d 877, 879 (Utah Ct. App. 1995) (quoting Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985) (quoting English v. English, 565 P.2d 409, 411 (Utah 1977))). "To attain these goals, the trial court must consider (1) the financial conditions and needs of the receiving spouse; (2) the ability of the receiving spouse to support him or herself; and (3) the ability of the payor spouse to provide support." Id. at 879. Here, appellant's claimed expenses are less than the sum of her imputed income and the child support award. The trial court therefore "decline[d] to award alimony in this case. Considering the respective incomes of the parties, and the ability of [appellant] to produce income, alimony is not needed to allow her to maintain the standard of living she enjoyed while married, or to keep her from becoming a public charge." Given the applicable legal doctrine and the court's findings, we cannot say the court abused its discretion in declining to order alimony.

Appellant also argues that the trial court abused its discretion regarding equity in the home, the USAA debt, and attorney fees at trial. We have reviewed appellant's arguments and conclude the trial court did not abuse its discretion. We also decline to award attorney fees to either party on appeal.

Affirmed.

Russell W. Bench, Judge

-----

WE CONCUR:

Judith M. Billings, Judge

Gregory K. Orme, Judge