Martinez v. Vasquez

Martinez v. Vasquez

IN THE UTAH COURT OF APPEALS

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Marie Anna Martinez,

Respondent, Appellee, and Cross-appellant,

v.

Francisco Ruiz Vasquez,

Petitioner, Appellant, and Cross-appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020273-CA
 

F I L E D
(April 22, 2004)
 

 

2004 UT App 121

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Second District, Ogden Department

The Honorable Ronald O. Hyde

Attorneys: Philip C. Patterson, Ogden, for Appellant and Cross-appellee

Steven R. Bailey, Ogden, for Appellee and Cross-appellant

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Before Judges Greenwood, Orme, and Thorne.

GREENWOOD, Judge:

Respondent Francisco Ruiz Vasquez (Husband) appeals the trial court's award of property in lieu of alimony. Specifically, Husband challenges the sufficiency of the trial court's findings of fact (1) establishing the financial needs and earning capacity of his former spouse Marie Anna Martinez (Wife), and (2) determining that a property settlement in lieu of alimony was reasonably calculated to fairly and equitably address Wife's financial needs. We affirm.

I. Consideration of Factors Under Utah Code

Annotated Section 30-3-5(8) (Supp. 2003).

"The actions of the trial court [in a divorce case] are indulged with a presumption of validity . . . ." Searle v. Searle, 522 P.2d 697, 700 (Utah 1974). When determining whether to award alimony, and in setting the amount, the trial court must consider the following: (i) the needs of the recipient spouse; (ii) the earning capacity of the recipient spouse; (iii) the ability of the payor spouse to provide support; (iv) the length of the marriage; (v) whether the recipient spouse has custody of minor children requiring support; (vi) whether the recipient spouse worked in a business owned or operated by the payor spouse; and (vii) whether the recipient spouse directly contributed to any increase in the payor spouse's skill by paying for education or allowing the payor spouse to attend school during the marriage. See Utah Code Ann. § 30-3-5(8) (Supp. 2003).(1)

"[W]e will reverse a trial court's judgment with respect to an award of alimony only if it represents a clear and prejudicial abuse of discretion." Crompton v. Crompton, 888 P.2d 686, 689 (Utah Ct. App. 1994); see also Griffith v. Griffith, 959 P.2d 1015, 1019 (Utah Ct. App. 1998). Failure by the trial court to consider all of the applicable statutory factors for awarding reasonable alimony constitutes an abuse of the trial court's discretion. See Rasband v. Rasband, 752 P.2d 1331, 1333 (Utah Ct. App. 1988).

Husband argues that the trial court failed to properly consider the first two factors under section 30-3-5(8) relating to Wife's financial needs and earning capacity. First, Husband challenges the trial court's imputation of a $12.00 per hour wage for Wife's current part-time work as a domestic, claiming it is not based on any evidence in the record. This argument is without merit. Utah Code Annotated section 78-45-7.5(7)(a) (2002) permits a court to impute income for purposes of calculating alimony and child support. See also Griffith, 959 P.2d at 1018.(2) Therefore, the amount imputed by the trial court is properly based upon "employment potential" and "probable earnings as derived from [Wife's] work history." Utah Code Ann. § 78-45-7.5(7)(b).

Husband also argues that the trial court failed to properly consider the first two statutory factors by not including the $1000 per month Wife will be receiving from Husband's medical retirement annuity.(3) This argument is also unpersuasive. The record is clear that although the trial court did not initially address the division of the medical retirement income in its first memorandum decision, the trial court's findings of fact and conclusions of law setting the alimony award clearly award Wife an equal division of the retirement income. Thus, the trial court included the retirement income in its final computation of alimony.

We have previously held that if the mandatory 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.'" Chambers v. Chambers, 840 P.2d 841, 843 (Utah Ct. App. 1992) (emphasis added) (quoting Schindler v. Schindler, 776 P.2d 84, 90 (Utah Ct. App. 1989)). In this case, the trial court's findings of fact and conclusions of law adequately address each of the factors required under section 30-3-5(8). The findings articulate the trial court's detailed analysis and reasoning for the $3000 monthly alimony award. For example, rather than blindly accepting Wife's exhibit of monthly expenses, the trial court used the exhibit to consider her needs, but then recognized that the exhibit included expenses covered by the child support award. Additionally, the trial court considered that Wife was capable of working to support herself, generating additional income. For these and other reasons explained in the findings of fact, the court reduced the requested alimony from $4300 to $3000 per month.

Finally, we are not persuaded that the trial court's determination resulted in "'a serious inequity'" manifesting "'a clear abuse of discretion'" by the trial court. Id. at 843 (citation omitted).

II. Property In Lieu of Alimony

Husband next argues that the trial court abused its discretion by finding that there was justification for a property distribution in lieu of alimony. We disagree. "Alimony determinations are within the sound discretion of the trial court because of its advantaged position to assess evidence and ascertain facts." Willey v. Willey, 951 P.2d 226, 230 (Utah 1997). Finding of fact number 19 states: "The Court finds that the Petitioner, based upon the difficulties in collecting alimony, is requesting a property settlement instead, which . . . the Court . . . believes to be appropriate." This finding is based on a history by Husband of not paying his interim alimony and child support. Husband argues that this is no longer a concern because all support payments are now automatically paid directly from one of his Zions Investments accounts.

Early in the divorce proceedings, the trial court was placed on notice of the potential problems if Husband were ordered to pay alimony in the usual manner. Husband had previously disregarded court orders requiring him to pay child support and alimony, and to obtain medical insurance for the minor children. Additionally, the trial court found that Husband was an angry man who had previously threatened Wife, resulting in a protective order restricting his contact with Wife. Given Husband's history of noncompliance with court orders and his angry and threatening demeanor toward Wife, the trial court acted within its discretion to ensure Wife's future support and minimize future contact between the parties.

The fairness and equity of the trial court's property award is also supported by the clear and deliberate efforts of the trial court to protect Husband's separate assets, including his personal injury funds, and to scrutinize Wife's alleged monthly expenses. Furthermore, it is significant that during the proceedings below, Husband never objected to the trial court's property settlement, nor did he offer the trial court an alternative alimony payment plan. Therefore, Husband has failed to show that the trial court's award of property in lieu of ongoing alimony was a prejudicial abuse of discretion. Given the discretion and presumption of validity given to trial court decisions in divorce cases, see Searle, 522 P.2d at 700, we conclude that the trial court did not abuse its discretion.(4)

III. Attorney Fees

Wife asks this court to award her attorney fees for responding to Husband's appeal. "When a trial court has awarded fees at trial based on such findings, and when the receiving spouse has prevailed on appeal, we will award attorney fees on appeal and remand solely for the trial court to make the foregoing findings." Schaumberg v. Schaumberg, 875 P.2d 598, 604 (Utah Ct. App. 1994); see Marshall v. Marshall, 915 P.2d 508, 517 (Utah Ct. App. 1996) ("[W]hen 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.").

In its findings of fact and conclusions of law, the trial court ordered Husband to pay Wife's attorney fees. Since Wife has prevailed on appeal, we conclude that she is entitled to attorney fees she has incurred on appeal. We therefore remand the case to the trial court for determination of those amounts. See Schaumberg, 875 P.2d at 604.

Because the trial court correctly analyzed the necessary statutory elements in setting the amount of Wife's alimony award, and because Husband has failed to show that the trial court's award of property in lieu of indeterminate alimony was a prejudicial abuse of discretion, we affirm the trial court's
findings of fact and conclusions of law. However, we remand for a determination of Wife's attorney fees incurred on appeal.

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Pamela T. Greenwood, Judge

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I CONCUR:

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William A. Thorne Jr., Judge

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I CONCUR IN THE RESULT:

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Gregory K. Orme, Judge

1. Although this statute has been amended since Wife filed for divorce, that amendment does not affect the outcome of this case. Therefore, for ease of reference, we cite to the most recent version of the statute.

2. While a court may impute income when calculating child support or alimony, a court "may not impute income to a parent 'unless the parent either stipulates to the amount imputed or there is a hearing in which the finding is made that the parent is voluntarily unemployed or underemployed.'" Griffith v. Griffith, 959 P.2d 1015, 1018 (Utah Ct. App. 1998) (citation omitted); see also Utah Code Ann. § 78-45-7.5(7)(a) (2002). In this case, Wife never objected to the imputed income, and the trial court made a specific finding that Wife was previously employed but gave up her employment to care for Husband. The trial court further found no evidence that Wife could not work to assist with her living expenses. Because these findings establish that Wife was voluntarily unemployed or underemployed, the trial court did not err by imputing an income to her.

3. In its first memorandum decision, the trial court failed to address the issue of Husband's medical retirement annuity, and presumably did not include any of this income in determining Wife's alimony award. In a subsequent memorandum decision, the trial court found the retirement income to be marital property and subject to an equal division based on the Woodward formula. See generally Woodward v. Woodward, 656 P.2d 431 (Utah 1982).

4. Husband also asserts the trial court could not exercise its continuing jurisdiction to modify the award of property in lieu of alimony. See Utah Code Ann. § 30-3-5(8)(g) (Supp. 2003). However, Husband cites no authority for this assertion and we thus do not consider it further. See Utah R. App. P. 24(a)(9).