Warner v. Warner

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Charles Young Warner,
Petitioner and Appellee,

v.

Patsy Evelyn Warner,
Respondent and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 991031-CA

F I L E D
April 12, 2001 2001 UT App 119 -----

Fourth District, Provo Department
The Honorable Ray M. Harding, Jr.

Attorneys:
David S. Dolowitz, Salt Lake City, for Appellant
Harold G. Christensen, Heather S. White, and Rodney R. Parker, Salt Lake City, for Appellee

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Before Judges Bench, Davis, and Thorne.

THORNE, Judge:

Appellant Patsy Evelyn Warner appeals from the denial of her Petition to Continue Alimony. We affirm.

First, appellant does not challenge the trial court's factual findings that; (1) as part of the property settlement agreement [appellant] received stock for her interest in Collision Safety Engineering, a company her husband started, and that parts of the original company have been sold off.

(2) after the divorce [appellant] opened [an] art gallery but the gallery failed shortly thereafter.

(3) [appellant] did not develop a significant ability to earn income during the marriage.

(4) [appellant] thought she could support herself with the proceeds from the art gallery and the property she received in the divorce settlement, but now these proceeds are insufficient.

(5) [appellee] has not retired and is earning substantially the same income that he earned at the time of the divorce. Because appellant accepts the trial court's findings of fact, we "'assume that the record supports the findings of the trial court.'" Crockett v. Crockett, 836 P.2d 818, 820 (Utah Ct. App. 1992) (citation omitted).

However, appellant argues that contrary to the trial court's legal conclusion, these facts demonstrate a material or substantial change in circumstance supporting her petition.(1) "'The determination of the trial court that there [has or has not] been a substantial change of circumstances . . . is presumed valid.'" Wilde v. Wilde, 969 P.2d 438, 442 (Utah Ct. App. 1998) (alteration in original) (quoting Wells v. Wells, 871 P.2d 1036, 1038 (Utah Ct. App. 1994)). Accordingly, we review the trial court's conclusion for an abuse of discretion. See id.

After reviewing the record, we conclude that while changes have certainly occurred in the party's lives, most notably the passage of time, these changes do not reflect a material or substantial change in circumstances for either party. Therefore, we conclude that under either standard, the trial court did not abuse its discretion in denying appellant's petition to modify.

Accordingly, we affirm.
 
 

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William A. Thorne, Jr., Judge -----

WE CONCUR:
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
James Z. Davis, Judge

1. Appellant also argues that the trial court erred in applying the current statutory test requiring "a substantial, material change in circumstances not foreseeable at the time of the divorce," Utah Code Ann. § 30-3-5(7)(g)(i)-(ii) (1998), because the parties had stipulated in their divorce decree that modification of alimony required only a showing of "material change in the financial circumstances of the parties." However, the trial court's ruling is very clear; the facts are insufficient to warrant modification under either standard. Therefore, we do not address appellant's argument that the trial court relied on the improper standard in making its ruling.