Rasmussen v. Rasmussen

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Alison Jane Rasmussen,
Plaintiff and Appellee,

v.

Rex B. Rasmussen,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981653-CA

F I L E D
May 4, 2000
  2000 UT App 129 -----

Sixth District, Manti Department
The Honorable Louis G. Tervort

Attorneys:
Don R. Petersen and Leslie W. Slaugh, Provo, for Appellant
Douglas L. Neeley, Ephraim, for Appellee

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Before Judges Greenwood, Jackson, and Davis.

GREENWOOD, Presiding Judge:

Rex Rasmussen appeals from the trial court's divorce decree distributing marital assets and debt and awarding Alison Jane Rasmussen alimony. We affirm the court's property distribution and alimony award and remand for an award of attorney fees incurred by Mrs. Rasmussen on appeal.

Mr. Rasmussen claims the trial court erred by imputing income to him of $5000 per month, arguing the record does not support this finding and the trial court failed to make a threshold finding of voluntary under- or unemployment. We disagree and conclude that the trial court did not impute income as contemplated by section 78-45-7.5(7)(a) of the Utah Code. Rather than imputing income, the trial court determined Mr. Rasmussen's actual income as best it could from the scant financial documents that he submitted to the court. Based on the evidence submitted and the parties' testimony, sufficient evidence supports the trial court's decision.

There are several means by which the trial court could determine Mr. Rasmussen had a monthly income of $5000. For example, Mr. Rasmussen submitted a profit and loss statement for his corporation from January 1, 1997 to September 30, 1997. Adding salary and expenses of Mr. Rasmussen paid by the corporation, the total is $47,499, which yields, when divided by nine months, an average monthly payment of $5278 to Mr. Rasmussen.

Alternatively, the trial court may have begun its calculation with Mr. Rasmussen's claimed monthly income of $2200. Mr. Rasmussen, however, submitted no competent evidence to support this figure, only estimating that his average monthly expenses paid from his corporate accounts were $2200. After the parties separated, but prior to the initiation of the divorce proceedings, Mr. Rasmussen paid Mrs. Rasmussen $3000 per month to cover family expenses. Adding Mr. Rasmussen's claimed monthly income with the payments made to Mrs. Rasmussen, the trial court could determine his income was $5000.

Mr. Rasmussen also submitted his company's 1995 and 1996 tax returns. During 1995, Mr. Rasmussen suffered from severe depression and worked only the last month and a half of that year. The 1995 tax return, however, shows gross income of $32,000. In 1996, when he was able to work at only twenty percent of his normal capacity, Mr. Rasmussen's company grossed over $151,000. Also during 1996, Mr. Rasmussen received $18,600 as his share of the livestock partnership. Finally, the profit and loss statement for his company showed gross income of $104,088.58 for the first nine months of 1997. These figures also support the trial court's finding that Mr. Rasmussen's income was $5000 per month.

After viewing all the evidence and the parties' testimony, the trial court found that Mr. Rasmussen was "less than candid with the Court in regards to his income and expenses." Furthermore, Mr. Rasmussen's personal finances were in turmoil, undocumented, and inextricably mixed with his corporation's finances. The trial court's difficulty in determining Mr. Rasmussen's income was created by his failure to provide the court with any reliable or detailed financial information. In reviewing a trial court's divorce decree, we have stated: "The trial court is uniquely situated to judge matters bearing on the weight and credibility that should be given to evidence, and we will not overturn the court's ruling in this regard unless it is clearly erroneous." Kessimakis v. Kessimakis, 1999 UT App 130,¶16, 977 P.2d 1226. "Where the trial court may exercise broad discretion, we presume the correctness of the court's decision absent 'manifest injustice or inequity that indicates a clear abuse of . . . discretion.'" Childs v. Childs, 967 P.2d 942, 944 (Utah Ct. App. 1998),cert. denied, 982 P.2d 88 (Utah 1999) (citation omitted) (alteration in original). In this case, the trial court had a "virtual absence of documentary evidence and . . . had little more to rely on than the parties' own conflicting testimony." Kessimakis, 1999 UT App 130 at ¶16. Given the standard of review, the evidence submitted, and the finding that Mr. Rasmussen lacked credibility, the trial court did not abuse its discretion in determining Mr. Rasmussen's income and awarding alimony to Mrs. Rasmussen.

Mr. Rasmussen also challenges the court's property distribution and debt allocation, arguing that the trial court erred by awarding him most of the marital debt and overvaluing certain pieces of property awarded to him. In making a property distribution, the trial court is given substantial deference and we will change those awards "'"only if there was a misunderstanding or misapplication of the law resulting in substantial and prejudicial error, the evidence clearly preponderated against the findings, or such a serious inequity has resulted as to manifest a clear abuse of discretion."'" Finlayson v. Finlayson, 874 P.2d 843, 847 (Utah Ct. App. 1994) (citations omitted). Given the dearth of evidence submitted by the parties and Mr. Rasmussen's lack of credibility, the trial court did not abuse its discretion in making the property distribution. Furthermore, most of the debt Mr. Rasmussen complains about is debt incurred by his corporation of which he had sole control and knowledge.

Because Mrs. Rasmussen was awarded attorney fees by the trial court and she is the prevailing party on appeal, she is entitled to attorney fees incurred in this appeal. See Lyngle v. Lyngle, 831 P.2d 1027, 1031 (Utah Ct. App. 1992). Accordingly, we affirm the trial court's decree awarding alimony and dividing the marital property and debt and remand for entry of an award of reasonable attorney fees incurred on appeal.
 
 
 
 
 

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

WE CONCUR:
 
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 
 
 
 

______________________________
James Z. Davis, Judge