Alloway v. Alloway

----ooOoo----

Heidi Alloway,
Appellant and Cross-appellee,

v.

Kurt Alloway,
Appellee and Cross-appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981537-CA

F I L E D
June 2, 2000 2000 UT App 161 -----

Third District, Tooele Department
The Honorable Leon A. Dever

Attorneys:
Jeffrey C. Howe, Salt Lake City, for Appellant
Kim M. Luhn and John C. Green, Salt Lake City, for Appellee

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Before Judges Greenwood, Jackson, and Davis.

GREENWOOD, Presiding Judge:

Trial courts are accorded broad discretion in determining custody awards. See Tucker v. Tucker, 910 P.2d 1209, 1214 (Utah 1996). "'"However, to ensure the court acted within its broad discretion, the facts and reasons for the court's decision must be set forth fully in appropriate findings and conclusions."'" Barnes v. Barnes, 857 P.2d 257, 259 (Utah Ct. App. 1993) (citations omitted). A trial court must make factual findings indicating that it considered relevant factors required by law and "must articulate the basic facts it found and the logical steps it used to reach the ultimate custody conclusion." Id.

In this case, mother challenges the trial court's award of joint legal and physical custody, contending that the trial court failed to make adequate findings. "Joint legal custody" is "the sharing of the rights, privileges, duties, and powers of a parent by both parents, where specified." Utah Code Ann. § 30-3-10.1(1) (1998). A trial court may order joint legal custody if it is in the best interest of the children and "both parents appear capable of implementing joint legal custody." Id. § 30-3-10.2(1)(b). Section 30-3-10.2 of the Utah Code provides a list of factors trial courts "shall" consider to determine if joint legal custody is in the best interest of the children. See id. § 30-3-10.2(2). These factors include: (a) whether the physical, psychological, and emotional needs and development of the child will benefit from joint legal custody;

(b) the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child's best interest;

(c) whether each parent is capable of encouraging and accepting a positive relationship between the child and the other parent;

(d) whether both parents participated in raising the child before the divorce;

(e) the geographical proximity of the homes of the parents;

(f) the preference of the child if the child is of sufficient age and capacity to reason so as to form an intelligent preference as to joint legal custody;

(g) the maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents; and

(h) any other factors the court finds relevant. Id. The above factors apply solely to joint custody awards. A second set of factors, listed in section 30-3-10, is used by trial courts to evaluate and compare both parents when determining which parent should be awarded custody. See id. § 30-3-10(1) (Supp. 1999); Tucker, 910 P.2d at 1215 (listing function related factors focusing on child's needs and each parent's character and abilities). Child custody evaluators are required to use these factors to make recommendations regarding which parent should be awarded custody. See Utah Code Jud. Admin. R4-903.

In this case, the trial court ultimately found that both parents were "capable of implementing joint legal custody" and that joint custody was in the children's best interests. However, the trial court's factual findings supporting its award of joint custody were based on the section 30-3-10 factors used to determine if one parent should have sole custody. The trial court failed to make the required findings on the joint custody factors listed in section 30-3-10.2. Further, the trial court made no findings indicating how the children's best interests would be served or why the parents were capable of implementing joint custody and sharing "the rights, privileges, duties, and powers of a parent."(1) Utah Code Ann. § 30-3-10.1 (1998). Indeed, an award of joint custody seems contrary to both the trial court's factual findings and the recommendation made by the custody evaluator.

"The trial court's inadequate findings in this case constitute reversible error unless the facts in the record are 'clear, uncontroverted, and capable of supporting only a finding in favor of the judgment.'" Sukin v. Sukin, 842 P.2d 922, 925 (Utah Ct. App. 1992) (citation omitted). Our review of this issue is complicated by the lack of a full record on appeal. However, the facts which can be gleaned from the portions of the record available for our review are not clear, uncontroverted, or capable of supporting only a finding in favor of joint custody. We therefore conclude that the trial court's subsidiary findings are inadequate to support its ultimate finding that it would be in the children's best interests to grant the parties joint custody. Consequently, we remand this case to the trial court for additional findings as required by Utah Code Ann. § 30-3-10.2 (1998).

Mother next asserts that the trial court's findings of fact are not supported by the evidence. "We will overturn the court's findings of fact only if they are clearly erroneous, and '"[o]nly where the trial court's judgment is so flagrantly unjust as to be an abuse of discretion, will [an appellate court] interpose its own judgment."'" Thomas v. Thomas, 1999 UT App 239,¶3, 987 P.2d 603 (alterations in original) (citations omitted). To the extent we can review this issue, given the limited record on appeal, we conclude that the trial court's findings are supported by the evidence, other than as noted above.

We also reject father's challenge to the trial court's division of property and debts. We conclude that the trial court's division of property and debts is supported by the evidence. See id. at ¶16 (explaining we will reverse trial court's division of property "'only if . . . the evidence clearly preponderated against the findings, or such a serious inequity has resulted as to manifest a clear abuse of discretion.'" (citations omitted)).

Father also challenges the trial court's award of attorney fees to mother in the amount of $5,000. Trial courts have the power to award attorney fees in divorce and custody actions; however, the trial court must consider and make findings on the financial need of the recipient, the ability of the spouse to pay, and the reasonableness of the requested fees. See Utah Code Ann. § 30-3-3 (1998); Rehn v. Rehn, 1999 UT App 41,¶22, 974 P.2d 306. "Whether the trial court's findings of fact in awarding attorney fees are sufficient is a question of law which we review for correctness." Id. In this case, although the trial court's findings on mother's financial need and father's ability to pay were not explicit, we conclude that they are adequate; however, the trial court did not enter findings indicating that the requested fees were reasonable. Accordingly, we remand for entry of further findings on the reasonableness of the requested fees.

Mother requests attorney fees on appeal. "Generally, 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." Marshall v. Marshall, 915 P.2d 508, 517 (Utah Ct. App. 1996). As such, because mother prevailed on appeal, we award her attorney fees incurred as a result of this appeal. We remand to the trial court to determine the amount.

In sum, because the trial court's findings regarding joint custody and attorney fees are inadequate, we remand those issues for findings consistent with this decision. We affirm the trial court's division of property and debts.
 
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge -----

WE CONCUR:
 
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 
 

______________________________
James Z. Davis, Judge

1. The trial court did, however, delineate the logistics of its joint custody award, specifying how the children's time would be split between parents.