Betteridge v. Betteridge

Betteridge v. Betteridge

IN THE UTAH COURT OF APPEALS

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Andra D. Betteridge,

Petitioner and Appellee,

v.

Brent R. Betteridge,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030065-CA
 

F I L E D
(March 4, 2004)
 

2004 UT App 50

 

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Third District, Salt Lake Department

The Honorable William B. Bohling

Attorneys: Lisa A. Jones, Salt Lake City, for Appellant

Glen M. Richman and Barbara W. Richman, Salt Lake City, for Appellee

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Before Judges Billings, Davis, and Orme.

DAVIS, Judge:

Brent Betteridge (Husband) argues that the trial court abused its discretion in its award of alimony because (1) it did not make specific findings regarding his income; (2) it awarded Andra Betteridge (Wife) nine months of retroactive alimony; and (3) it did not impute summer income to Wife. Husband additionally argues that the trial court abused its discretion in its distribution of marital property. We affirm.

"In determining whether to award alimony and in setting the amount, a trial court must consider 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; see Utah Code Ann. § 30-3-5(8)(a)(i)-(vii) (Supp. 2003)(1) (outlining factors that trial courts must consider when determining an alimony award). "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 (quotations and citation omitted).

Husband does not challenge the trial court's findings, but asserts they are inadequate. The trial court made detailed findings regarding Husband's income and ability to pay the alimony award. The trial court found that Husband's annual pay varied because he "has historically been required to work mandatory overtime as part of his employment as a lineman and historically receives additional premium pay for overtime plus incentive bonus awards." The trial court correctly relied upon Husband's historical earnings in determining the alimony award. See Cox v. Cox, 877 P.2d 1262, 1267 (Utah Ct. App. 1994) ("In assessing spousal support, trial courts have appropriately relied on historical income rather than income at the time of the divorce where a party has experienced a temporary decrease in income." (quotations and citations omitted)). Specifically, the trial court noted that Husband's average monthly gross earnings for the years 1998 through 2002 were $6166.50, $8496.34, $7743.67, $8715.17, and $6200.84, respectively. The trial court found that Husband's year-to-date net monthly income for 2002 was $2901.08 after taxes and deductions. Further, with respect to Husband's claim of $3775.57 in living expenses, the trial court found, inter alia, that "[b]ased upon the testimony at trial and the evidence offered and accepted," Husband had "some exaggerated and inflated expenses in his budget line items," and subsequently determined that Husband had the ability to pay $1600 per month in alimony. Because the trial court adequately considered the factors outlined in Rehn, see 1999 UT App 41 at ¶6, it did not abuse its discretion in concluding that Husband has the ability to pay the alimony award.

Next, Husband argues that by ordering nine months of retroactive alimony, the trial court abused its discretion because it impermissibly modified a temporary order that it had issued. Husband's argument is misplaced. The commissioner, in his recommendations and in his certification of the matter to trial, specifically reserved the issue of temporary alimony. Because this matter was reserved for disposition, no temporary order on alimony was in place, and thus the trial court did not abuse its discretion in awarding nine months of retroactive alimony.

Husband also argues that the trial court abused its discretion by not imputing summer income to Wife. "Imputing income to an unemployed or underemployed spouse when setting an alimony award is conceptually appropriate as part of the determination of that spouse's ability to produce a sufficient income." Cox, 877 P.2d at 1267 (quotations and citation omitted). "However, it cannot be premised upon mere conjecture; instead, it demands a careful and precise assessment requiring detailed findings." Willey v. Willey, 866 P.2d 547, 554 (Utah Ct. App. 1993). Husband presented no evidence that Wife had regular employment or that employment was available to her during the summer months, let alone evidence of prospective earnings.(2) Because Husband's argument was essentially "premised upon mere conjecture," the trial court did not abuse its discretion in refusing to impute summer income to Wife. Id.

Finally, Husband argues that the trial court abused its discretion in its distribution of marital property and debts.

We afford the trial court considerable latitude in adjusting financial and property interests, and its actions are entitled to a presumption of validity. Accordingly, changes will be made in a trial court's property division determination in a divorce action 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.

Davis v. Davis, 2003 UT App 282,¶8, 76 P.3d 716 (quotations and citations omitted). The trial court received detailed testimony, exhibits, and charts from both Husband and Wife regarding their marital property and debts. Upon a review of the trial court's detailed and extensive findings supporting its division of marital property and debts, we conclude that the trial court did not abuse its discretion.

Wife seeks an award of attorney fees on appeal. Attorney fees are generally not awarded on appeal unless awarded below, except when an appeal is frivolous, or when a party demonstrates a "well-supported claim of changed circumstances." Burt v. Burt, 799 P.2d 1166, 1171 (Utah Ct. App. 1990). Since attorney fees were not awarded below, and because Wife has not made a showing that Husband's appeal is frivolous, nor has she made a "well-supported claim of changed circumstances," Wife is not entitled to attorney fees on appeal. Id.

Affirmed.

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James Z. Davis, Judge

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I CONCUR:

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Judith M. Billings,

Presiding Judge

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ORME, Judge (concurring in part and dissenting in part):

I concur in the court's opinion except in one respect. Even without the kind of evidence the majority says Husband should have introduced if summer income was to be imputed to Wife, income should have been imputed, as a matter of course, at minimum wage, for a 40-hour week. Thus, I would remand with instructions to impute this minimal additional income to Wife, and to adjust the amount of monthly alimony as may then be appropriate. See generally Reese v. Reese, 1999 UT 75,¶13, 984 P.2d 987 (referring to statute that considers minimum wage to be default level for imputing income in child support cases in all but a few circumstances); Ball v. Peterson, 912 P.2d 1006, 1008 (Utah Ct. App. 1996) (noting, without criticism, that trial court imputed income to wife at minimum wage level in child support context); Rasband v. Rasband, 752 P.2d 1331, 1334 n.3 (Utah Ct. App. 1988) (noting alimony amount awarded by trial court was inadequate even with imputation of minimum wage income to wife).

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Gregory K. Orme, Judge

1. We cite to the most current version of the alimony determination statute for convenience.

2. During oral argument, Husband's counsel even alluded to the adequacy of the findings respecting imputation of income.