Johnson v. Johnson

----ooOoo----

Carrie L. Johnson,
Plaintiff, Appellee, and Cross-appellant,

v.

Jeffrey Don Johnson,
Defendant, Appellant, and Cross-appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981484-CA

F I L E D
July 1, 1999
  1999 UT App 214 -----

Second District, Farmington Department
The Honorable Michael G. Allphin

Attorneys:
Randy S. Ludlow, Salt Lake City, for Appellant
Paul W. Mortensen, Bountiful, for Appellee -----

Before Judges Bench, Davis, and Orme.

BENCH, Judge:

The parties raise numerous issues on appeal and cross-appeal. After our review of the record, and based upon the applicable standards of review, most of the issues raised fall within the broad discretion and equitable powers granted to the trial court. Accordingly, we address only those issues where the trial court may have erred. See State v. Tucker, 800 P.2d 819, 824 n.9 (Utah Ct. App. 1990).

Tax Dependency Exemptions

Utah cases previously recognized that federal tax law presumes the custodial parent receives the exemption, and outlined how this presumption can be rebutted. See, e.g., Allred v. Allred, 835 P.2d 974, 978 (Utah Ct. App. 1992); Motes v. Motes, 786 P.2d 232, 239 (Utah Ct. App. 1989); see also 26 U.S.C.A. § 152(e)(1) (Supp. 1999). Subsequently, the legislature enacted section 78-45-7.21 of the Utah Code. This section took effect on July 1, 1994 as part of the Uniform Civil Liability for Support Act, which governs child support orders. See Utah Code Ann. §§ 78-45-1 to -13 (1996); Brinkerhoff v. Brinkerhoff, 945 P.2d 113, 117 (Utah Ct. App. 1997) (stating "[c]hild support orders are governed by the Uniform Civil Liability for Support Act"). Section 78-45-7.21(1) provides that "[n]o presumption exists as to which parent should be awarded the right to claim a child or children as exemptions for federal and state income tax purposes." Utah Code Ann. § 78-45-7.21(1) (1996). Furthermore, this section mandates that, when awarding the tax exemption for dependent children, the court "shall consider: (a) as the primary factor, the relative contribution of each parent to the cost of raising the child; and (b) among other factors, the relative tax benefit to each parent." Id. § 78-45-7.21(2). Given the lack of findings on the tax exemption award, we are unable to determine whether the trial court considered these requirements and we must therefore remand for further findings.

On remand, the trial court should also consider the following subsection of the same statute, which states: "Notwithstanding Subsection (2), the court . . . may not award any exemption to the noncustodial parent if that parent is not current in his child support obligation, in which case the court . . . may award an exemption to the custodial parent." Id. § 78-45-7.21(3). The trial court has already found appellant "delinquent in his alimony and child support obligation through the month of January 1997 in the amount of $13,350." Consequently, if appellant remains delinquent in his support obligations, the court may not award him any of the tax exemptions.

Children's Medical Insurance

The trial court considered the financial circumstances and abilities of the parties to pay insurance premiums, and ordered appellant to pay the health and accident insurance for the benefit of the minor children. Appellant asserts that the trial court's order is contrary to statutory directives.

Section 78-45-7.15 addresses medical expenses for the minor children and provides: "The order shall require each parent to share equally the out-of-pocket costs of the premium actually paid by a parent for the children's portion of the insurance." Utah Code Ann. § 78-45-7.15(3) (1996). Because this statute expressly requires the court to order the parents to share the premium expense equally, the trial court erred by failing to do so. We therefore reverse the order requiring appellant to be solely responsible for the insurance premium payment and remand for an order consistent with the statutory guidelines.

Contempt

Appellant candidly concedes the finding of contempt is clearly unsupported by the facts and record evidence. We agree, and therefore vacate the finding and judgment of contempt entered against appellee.

Attorney Fees

We have previously held that "it was an abuse of discretion for the trial court to award less than the claimed amount of attorney fees without any reasonable justification, and that a trial court must explain its sua sponte reduction in order to permit meaningful review on appeal." Bell v. Bell, 810 P.2d 489, 494 (Utah Ct. App. 1991) (citing Haumont v. Haumont, 793 P.2d 421, 426 (Utah Ct. App. 1990)).

In the present case, the trial court made findings regarding appellee's need and appellant's ability to pay. However, the court gave no explanation for reducing appellee's award from the actual claimed amount of attorney fees. The absence of the trial court's findings explaining the reduction prevents a meaningful review of the ruling on appeal. See Wilde v. Wilde, 969 P.2d 438, 444 (Utah Ct. App. 1998); Bell, 810 P.2d at 494. We therefore remand to the trial court for reconsideration of appellee's request for attorney fees and costs, and direct the court to make the necessary findings to explain its determination.

Appellee also requests an award of attorney fees incurred on appeal. "A party in a divorce appeal, in need of financial assistance, may be awarded attorney fees incurred in having to pursue [or defend] an appeal." Allred, 835 P.2d at 979. Because appellee has substantially prevailed on appeal (in light of the many issues presented) and the trial court awarded her fees below, we award appellee her attorney fees and costs on appeal. Accordingly, we remand to the trial court to determine the amount of attorney fees reasonably incurred on appeal.

CONCLUSION

Except as noted herein, the judgment of the trial court is affirmed. The case is remanded for further proceedings consistent with this decision.
 
 

______________________________
Russell W. Bench, Judge -----

WE CONCUR:
 
 

______________________________
James Z. Davis, Judge
 
 

______________________________
Gregory K. Orme, Judge