Smith v. Ence

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Wendalyn Smith (Ence),
Petitioner and Appellant,

v.

Larry D. Ence,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981707-CA

F I L E D
February 10, 2000
  2000 UT App 029 -----

Second District, Ogden Department
The Honorable Michael J. Glasmann

Attorneys:
Carolyn D. Zeuthen, Ogden, for Appellant
Mary C. Corporon and Brian J. Gardner, Salt Lake City, for Appellee

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Before Judges Bench, Jackson, and Wilkins.(1)

JACKSON, Judge:

"Trial courts have broad discretion in making alimony awards. We will not upset a trial court's award of alimony so long as the trial court exercises its discretion within the appropriate legal standards." Johnson v. Johnson, 855 P.2d 250, 251-52 (Utah Ct. App. 1993).

Ms. Smith challenges the alimony award to Mr. Ence on several bases. First, she complains that the trial court erred in making the alimony award from inferences about Mr. Ence's needs. However, the trial court had direct evidence in the record, i.e., trial testimony and Mr. Ence's financial statement, from which to figure Mr. Ence's needs. Thus, the trial court's determination regarding Mr. Ence's needs was not based merely on inferences.

Second, Ms. Smith maintains the trial court erred in choosing 1987 as the benchmark year for the couple's standard of living during marriage. But, if one averages the couple's income from 1987 through 1994 (including the amount of student loans Ms. Smith contributed to household expenses during medical school), the amount is around $51,000--the amount from which the trial court estimated the couple's standard of living during the last several years of marriage.

Third, Ms. Smith attacks the trial court's finding that Mr. Ence's earning capacity was limited to twelve dollars per hour. We conclude the trial court's finding was supported by Mr. Ence's testimony about his employment search, the difference between union and nonunion jobs and pay between Arizona and Utah, his wage at the time of trial, and his inability to find better-paying employment.

Fourth, Ms. Smith assails the trial court's award of alimony for twenty-one years. The findings of fact show that in making the award the trial court considered the twenty-one-year length of the marriage, the nature of Mr. Ence's future needs, and his earning and retirement income potential. The findings of fact support the inference that Mr. Ence's ability to provide for himself would not likely improve at all over the twenty-one years, while his needs would remain relatively constant.

Finally, Ms. Smith attacks the trial court's award of a compensating adjustment. When a marriage of long duration dissolves on the threshold of a major change in the income of one of the spouses due to the collective efforts of both, that change shall be considered in dividing the marital property and in determining the amount of alimony. If one spouse's earning capacity has been greatly enhanced through the efforts of both spouses during the marriage, the court may make a compensating adjustment in dividing the marital property and awarding alimony. Utah Code Ann. § 30-3-5(7)(e) (Supp. 1999); accord Martinez v. Martinez, 818 P.2d 538, 542 (Utah 1991).

Ms. Smith argues that her earning capacity was enhanced only through her own efforts, not those of Mr. Ence. However, the trial court found, based on trial testimony, that Mr. Ence did participate in the effort that significantly increased Ms. Smith's earning capacity. For instance, Mr. Ence supported the family virtually alone throughout Ms. Smith's undergraduate and medical school education. His financial support placed her in a position to hire a nanny for the children during medical school. Ms. Smith contributed less income to the family during medical school than she had during other periods during the marriage. Mr. Ence had to travel a long distance each weekend to visit his family in Tucson during medical school. The trial court's findings are supported by record evidence.

Based on the evidence in the record and the trial court's findings of fact, we conclude the trial court did not abuse its discretion in making its findings supporting the alimony award,

nor did it abuse its discretion in awarding Mr. Ence a compensating adjustment in alimony. Further, in response to Mr. Ence's request for attorney fees on appeal, we note that he was awarded partial attorney fees at trial. We thus award him attorney fees on appeal and remand to the trial court to determine a reasonable amount. See Watson v. Watson, 837 P.2d 1, 8 (Utah Ct. App. 1992), overruled on other grounds by Lyon v. Burton, 2000 UT 19, ¶ 76 n.18.

Affirmed.
 
 
 
 

______________________________
Norman H. Jackson, Judge -----

WE CONCUR:
 
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 

______________________________
Michael J. Wilkins, Judge

1. Utah Supreme Court Justice Michael J. Wilkins sitting by special appointment pursuant to Utah Code Ann. § 78-7-9.5 (1996); Utah Code Jud. Admin. R3-108(3).