Christiansen v. Christiansen

Christiansen v. Christiansen

IN THE UTAH COURT OF APPEALS

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Doreen Michelle Christiansen,
Petitioner and Appellee,

v.

Kent Christiansen,
Respondent and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010574-CA

F I L E D
(October 17, 2003)

2003 UT App 348

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Fifth District, St. George Department

The Honorable G. Rand Beacham

Attorneys: Kent L. Christiansen, Provo, for Appellant

James E. Slemboski, St. George, for Appellee

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Before Judges Jackson, Bench, and Greenwood.

GREENWOOD, Judge:

Kent Christiansen (Husband) appeals from the trial court's Amended Findings of Fact and Conclusions of Law finalizing his divorce from Doreen Christiansen (Wife). Specifically, Husband appeals from the trial court's alimony award and property division. We affirm.

The trial court in this case made detailed findings of fact supporting its conclusions of law. The trial court found that Husband concealed assets, investments, and income from Wife, and that Husband's evidence concerning his earning capacity was not credible. These findings were based in part on the testimony of two former employees in his law firm. They testified that Husband received between $10,000 and $15,000 per month in gross receipts, in contrast to Husband's testimony that he received $3,200 per month in gross receipts. Further, the employees testified that Husband often did work on an exchange basis, yet Husband disclosed no clear records to account for this income. Husband failed to respond to Wife's discovery requests, despite having exclusive control over his business and financial records. The court also found that Husband had physically assaulted Wife on several occasions and bullied Wife about financial matters. Finally, the trial court found that Husband was not credible. These findings play a central role in the trial court's alimony award and property division. The court made additional findings, which are discussed in context below.

The trial court found that Wife did not work outside the home during the marriage, but stayed home with the parties' four children. The court also found that Wife did not complete a college degree and was earning approximately $1,131 per month at the time of trial; that Wife lacked "training or experience in order to obtain better paying work"; that the standard of living she enjoyed during marriage was much higher than that which she enjoyed at the time of trial. Additionally, the court found that Wife's stated expenses were reasonable to meet her needs, and that Husband had the ability to provide support.

Husband appeals the trial court's alimony award, objecting to the imputation of income, the continuation of alimony beyond remarriage, and the amount of the award. He also appeals the property distribution. "Trial courts have considerable discretion in determining alimony and property distribution in divorce cases, and will be upheld on appeal unless a clear and prejudicial abuse of discretion is demonstrated." Howell v. Howell, 806 P.2d 1209, 1211 (Utah Ct. App. 1991).

The trial court imputed a monthly income of $6,000 to Husband. While gross income is usually established by proof of current income, a court may impute income in specific circumstances, after making the threshold finding that a party is voluntarily underemployed. See Utah Code Ann. § 78-45-7.5(5)(b)-(c), (6), (7)(a) (2002); see also Reinhart v. Reinhart, 963 P.2d 757, 758 (Utah Ct. App. 1998). Once the threshold finding is made the court then determines the amount to impute based upon statutory factors. See Utah Code Ann. § 78-45-7.5(7)(b).

The trial court found, based upon the facts discussed above, that the income figures Husband presented to the court were not trustworthy. The findings also make clear that the court considered the statutory factors. Therefore, the trial court did not abuse its discretion when it imputed income to Husband.

Next, Husband appeals the conclusion that Wife's alimony award was not to terminate for five years following her remarriage. A trial court has the discretion to continue an alimony award after the receiving spouse's remarriage. "Unless a decree of divorce specifically provides otherwise, any order of the court that a party pay alimony to a former spouse automatically terminates upon the remarriage of that former spouse." Utah Code Ann. § 30-3-5(9) (1998) (emphasis added). The trial court specifically provided that the alimony award was not to terminate for five years after Wife's remarriage. This finding was based on Wife's low income potential because she stayed home to raise the family during the marriage.

The grant of alimony beyond remarriage was not based on Wife's contribution to Husband's education and law degree, as Husband argues. Professional degrees are not marital property subject to division, and a trial court cannot use alimony as a "de facto division of the professional degree or license." Johnson v. Johnson, 855 P.2d 250, 252-53 (Utah Ct. App. 1993); see also Martinez v. Martinez, 818 P.2d 538, 542 (Utah 1991) (holding professional degree not marital property). The trial court considered factors other than Husband's law degree, including the statutory factors to be considered in determining alimony. See Utah Code Ann. § 30-3-5(7)(a)(i)-(iv) (1998).(1) These statutory factors include the payor spouse's income. See id.

In addition, the court considered Husband's fault in reducing the parties' marital estate and in inaccurately reporting his income and expenses. "The court may consider the fault of the parties in determining alimony." Utah Code Ann. § 30-3-5(7)(b). Considering the fault of a party is distinct from punishing a party based on fault. See Davis v. Davis, 2003 UT App 282,¶9 n.1, 479 Utah Adv. Rep. 6. In this case, the trial court made sufficient findings, based on the evidence presented, to support the alimony award. Husband's argument that the alimony award is a "penalty" imposed on him, and a "reward" given to Wife, is not supported by the trial court's findings. Fault may correctly be considered by the trial court without penalizing the party found to be at fault. Accordingly, the trial court's award of alimony to continue for five years after Wife's remarriage is not an abuse of discretion.

Husband's final objection to the alimony award is that it exceeds Wife's established need. "[T]he spouse's demonstrated need must . . . constitute the maximum permissible alimony award." Bingham v. Bingham, 872 P.2d 1065, 1068 (Utah Ct. App. 1994). The trial court in this case made an implicit finding that Wife's expenses were reasonable. To wit, the findings of fact state that Wife "needs about $2,100 per month in addition to her own take home income in order to make ends meet." While the court attempted to raise Wife's standard of living to that which the parties enjoyed during the marriage, it stated that Husband could not expect to maintain the standard he enjoyed because it included extravagant trips with a mistress and other expenditures related to his extramarital affair. At the same time, Wife lived in a one-bedroom condominium with the parties' four children.

Husband also claims that the trial court's division of the marital estate was inequitable. In Utah, marital assets should be divided equally, absent exceptional circumstances. See Thomas v. Thomas, 1999 UT App 239,¶22, 987 P.2d 603 (stating "each party is presumed to be entitled to . . . fifty percent of the marital property" (quotations and citations omitted)). "We afford the trial court 'considerable latitude in adjusting financial and property interests, and its actions are entitled to a presumption of validity.'" Davis, 2003 UT App 282 at ¶8 (citations omitted).

The trial court acknowledged that the property division was not mathematically equal but was justified based on the facts of this case. Nevertheless, Husband argues that awarding Wife a 100% interest in the Fairview cabin was error. The court made this award based on Husband's dissipation of the marital estate. The court was unable to ascertain Husband's income and worth, due to Husband's scuttling of his law practice, his commingling of funds, and his frivoling away of substantial funds belonging to the marital estate. Given the trial court's findings of fact, we conclude there was no abuse of discretion in awarding Wife more than half of the martial assets.

Husband also maintains that the trial court erred when it valued a 1931 Ford Victoria at $20,000, which it awarded to him. Based on the trial testimony regarding the car, and because we afford the trial court "considerable latitude in adjusting financial and property interests," id., we uphold the trial court's valuation of the car at $20,000. Similarly, we see no abuse of discretion in assigning most of the parties' debt to Husband, based on the trial court's findings and evidence that Husband incurred most of that debt without Wife's knowledge or concurrence.

Given the trial court's detailed findings in this case, there was no abuse of discretion in its determinations regarding alimony and property division. Additionally, Wife has requested attorney fees on appeal, claiming that Husband's appeal was
frivolous. Because we determine the appeal was not frivolous, we deny her request. Affirmed.

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Pamela T. Greenwood, Judge

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WE CONCUR:

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Norman H. Jackson,

Presiding Judge

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Russell W. Bench, Judge

1. Utah Code Annotated section 30-3-5(7)(a) enumerates the following factors a court must consider in determining alimony:

"(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) (1998).