Catten v. Catten

----ooOoo----

Bonnie Jean Catten,
Petitioner and Appellee,

v.

Joseph Dennis Catten,
Respondent and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010366-CA

F I L E D
November 15, 2002 2002 UT App 380 -----

Third District, Salt Lake Department
The Honorable Glenn K. Iwasaki

Attorneys:
Clark R. Ward, Midvale, for Appellant
Richard N. Bigelow, Bountiful, for Appellee -----

Before Judges Davis, Greenwood, and Thorne.

GREENWOOD, Judge:

Joseph Dennis Catten (Husband), appeals the trial court's modification of his original alimony obligation seeking either elimination or a further reduction of alimony. We affirm.

"The court has continuing jurisdiction to make substantive changes and new orders regarding alimony based on a substantial material change in circumstances not foreseeable at the time of the divorce." Utah Code Ann. § 30-3-5(7)(g)(i) (Supp. 2002). "Once a party has established that a substantial material change in circumstances not foreseen at the time of the divorce has occurred, the trial court must then consider what a reasonable alimony award is in light of that change." Bolliger v. Bolliger, 2000 UT App 47,¶22, 997 P.2d 903. Factors used in determining the reasonableness of an alimony award include, in part: (i) the financial condition and needs of the recipient spouse; (ii) the recipient's earning capacity or ability to produce income; (iii) the ability of the payor spouse to provide support; and (iv) the length of the marriage. Utah Code Ann. § 30-3-5(7)(a) (Supp. 2002). When modifying an alimony award, "[t]he court may [also] consider the subsequent spouse's financial ability to share living expenses." Id. at (7)(g)(iii)(A). "If these factors have been considered, we will not disturb the trial court's alimony award unless such a serious inequity has resulted as to manifest a clear abuse of discretion." Kelley v. Kelley, 2000 UT App 236,¶26, 9 P.3d 171 (citation and quotations omitted).

Husband argues that the trial court abused its discretion in determining that Bonnie Jean Catten (Wife) should continue to receive alimony payments. Husband argues, inter alia, that Wife does not "need" alimony evidenced by her "decision" to live with her parents and set aside a portion of her income for retirement. We disagree. After reviewing the record, we cannot conclude that the trial court abused its discretion when applying the factors outlined in Utah Code Ann. § 30-3-5(7) to the facts of this case, to determine that Wife, although employed, has a need for alimony. Additionally, the trial court properly applied subsection (7)(a) in finding that Husband "is capable, based upon his stated income, expenses, and . . . contributions of his spouse" to continue to pay alimony, albeit at a reduced amount.

Finally, we do not believe Wife should be penalized for her fiscal responsibility. Wife's living situation has been necessitated by Husband's inconsistent alimony payments, making it impossible for her to responsibly buy or rent a home. In addition, we agree with the trial court that Wife's decision to live in her parent's small home and fund a retirement plan should not be punished by a further reduction in alimony. We conclude the trial court did not abuse its discretion when applying the factors set forth in Utah Code Ann. § 30-3-5(7)(a) to determine that Wife should continue to receive alimony and that Husband is capable of continuing his alimony obligations. We therefore affirm.
 
 

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

WE CONCUR:
 
 

______________________________
James Z. Davis, Judge
 
 

______________________________
William A. Thorne Jr., Judge