Chapman v. Chapman

----ooOoo----

Desire Chapman,
Petitioner and Appellee,

v.

Brad Chapman,
Respondent and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990413-CA

F I L E D
March 15, 2001 2001 UT App 89 -----

First District, Brigham City Department
The Honorable Clint S. Judkins

Attorneys:
Brad Chapman, Ogden, Appellant Pro Se
Jeff R. Thorne, Brigham City, for Appellee -----

Before Judges Greenwood, Bench, and Orme.

GREENWOOD, Presiding Judge:

Respondent (Brad) appeals two portions of the Decree of Divorce entered by the trial court. We affirm.

Brad first appeals the $500 a month alimony awarded to petitioner (Desire), arguing that the trial court erred because there was no finding that he had the ability to pay alimony. We review the trial court's award of alimony for abuse of discretion. See Kelley v. Kelley, 2000 UT App 236,¶26, 9 P.3d 171. An alimony award must be based on consideration of four factors: "the needs of the recipient spouse; the earning capacity of the recipient spouse; the ability of the obligor spouse to provide support; and, the length of the marriage." Rehn v. Rehn, 1999 UT App 41,¶6, 974 P.2d 306 (emphasis added); see also Utah Code Ann. § 30-3-5(7)(a)(i)-(iv) (1998) (listing four factors a court must consider in determining alimony).(1)

The trial court made findings regarding Brad's income for the five years prior to the divorce and determined that his average income for that time period was $35,735.97 annually or $2,978.00 monthly. The court specifically found that Brad had the ability to pay alimony based on his monthly expenses and set the amount of alimony accordingly. These findings satisfy the requirements of our case law and section 30-3-5(7).

Brad also argues that these findings and the findings regarding Desire's expenses and income were erroneous and not supported by the record. "However, in order to challenge a trial court's findings of fact on appeal, the challenger 'must marshal all the evidence in support of the findings and then demonstrate that the evidence is insufficient to support the findings in question.'" Marshall v. Marshall, 915 P.2d 508, 516 (Utah Ct. App. 1996) (citation omitted). Brad "has not properly marshaled the evidence but has merely recited the findings on point and then highlighted the evidence which he deems contrary to the findings." Id. Nevertheless, we have reviewed both the trial court's findings and the evidence upon which they are based, and conclude the findings are adequate. We also note that although Desire's past income was below minimum wage, she stipulated to the court's finding of income at that level.

Brad further appeals the trial court's award of attorney fees to Desire because the trial court made no finding that he had the ability to pay those fees. In Kelley, this court stated: "The decision to award attorney fees and the amount thereof rests primarily in the sound discretion of the trial court. However[,] the trial court must base the award on evidence of the receiving spouse's financial need, the payor spouse's ability to pay, and the reasonableness of the requested fees." 2000 UT App 236 at ¶30 (citation omitted) (emphasis added). As noted above, the trial court properly made findings regarding Brad's income and ability to pay alimony. Additionally, the court noted that Brad had the ability to pay attorney fees. Having found Brad's income and ability to pay alimony, the court implicitly found that Brad likewise had the ability to pay attorney fees. Cf. id. at ¶31 (concluding when appellant failed to demonstrate that trial court's finding regarding his income and his ability to pay alimony was erroneous, his claim of assigned error also failed in relation to his ability to pay attorney fees).

Brad also asserts that there was no finding that the attorney fees were reasonable. Factors the court may consider in determining the reasonableness of attorney fees include: "'difficulty of the litigation, the efficiency of the attorneys, the reasonableness of the number of hours spent on the case, the fee customarily charged in the locality, the amount involved in the case and the result attained, and the experience and expertise of the attorneys involved.'" Rehn, 1999 UT App 41 at ¶22 (quoting Bell v. Bell, 810 P.2d 489, 493-94 (Utah Ct. App. 1991)).

In paragraph 22 of its Findings of Fact, the court explicitly noted the fees incurred and the reason for them, including efforts expended on the home ownership and child custody issues. The findings indicate the trial court found that the matters were more complicated than they might have been, noting the numerous pleadings filed regarding the sale of the home. The findings demonstrate that Brad's contesting of these issues added to the costs of the litigation. The findings also address the efficiency of the attorneys, the difficulty and nature of the issues, and the reasonableness of the hours spent in the litigation.

In sum, the trial court's Findings of Facts and Conclusions of Law demonstrate that it considered the factors regarding the reasonableness of the requested fees and Brad's ability to pay these fees. Therefore, we hold the trial court acted within its discretion in awarding Desire attorney fees.

Lastly, Desire seeks an award of her attorney fees incurred 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, 915 P.2d at 517. As Desire has prevailed on all issues raised by this appeal, we remand to the trial court to determine her attorney fees reasonably incurred in this appeal.

Affirmed and remanded with instructions.
 

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

WE CONCUR:
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
Gregory K. Orme, Judge

1. This section of the Utah Code was amended effective May 3, 1999. See Utah Code Ann. § 30-3-5 (Supp. 2000). The current section has three additional factors that a trial court must consider in awarding alimony. See id. at § 30-3-5(7)(a)(v)-(vii). However, in the present case the Findings of Fact and Conclusions of Law and Decree of Divorce were signed and entered on April 9, 1999; thus, we apply the former version.