Fitzgerald v. Fitzgerald

Fitzgerald v. Fitzgerald

IN THE UTAH COURT OF APPEALS
 

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Charlene Fitzgerald,

Petitioner and Appellee,

v.

Mike Fitzgerald,

Respondent and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030542-CA
 

F I L E D
(February 17, 2005)
 

2005 UT App 67

 

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Third District, Salt Lake Department

The Honorable Joseph C. Fratto Jr.

Attorneys: John Walsh, Salt Lake City, for Appellant

Stanley S. Adams, Salt Lake City, for Appellee

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Before Judges Bench, Davis, and Greenwood.

GREENWOOD, Judge:

    Mike Fitzgerald (Husband) appeals the trial court's divorce decree distributing martial assets and awarding $2000 per month in alimony and $5000 in attorney fees to Charlene Fitzgerald (Wife). We reverse and remand for adequate findings on alimony and attorney fees, and affirm the court's property distribution.

    "When reviewing a trial court's determination of alimony and attorney fees, an appellate court reviews them for abuse of discretion." Willey v. Willey, 951 P.2d 226, 230 (Utah 1997). "In order to reverse the trial court's distribution of property in a divorce action, we must find that it works such a manifest injustice or inequity as to indicate a clear abuse of discretion." Burge v. Facio, 2004 UT App 54,¶12, 88 P.3d 350 (quotations and citation omitted).

    Husband argues that the trial court abused its discretion by failing to enter specific findings on Wife's financial needs.(1) Wife responds that financial need is but one of several statutory factors the trial court may consider in awarding alimony. We agree with Husband.

    Utah Code section 30-3-5(7)(a) requires a court to consider four factors in determining alimony: (1) the financial condition and needs of the recipient spouse; (2) the recipient's earning capacity and ability to produce income;(3) the ability of the payor spouse to provide support; and (4) the length of the marriage. See Utah Code Ann. § 30-3-5(7)(a)(i)-(iv) (1998).(2) The court also has discretion to consider fault and standard of living in awarding alimony, and may use an alimony award to equalize the parties standard of living. See id. § 30-3-5(7)(b)-(d) (1998).

    Where the trial court "fails to enter specific findings on the needs and condition of the recipient spouse, making effective review of the alimony award impossible, that omission is an abuse of discretion." Bakanowski v. Bakanowski, 2003 UT App 357,¶10, 80 P.3d 153. The trial court entered findings on both Wife's and Husband's income. However, the trial court made no factual findings indicating that it considered Wife's financial needs in awarding Wife $2000 per month in alimony. Instead, it appears that the trial court simply equalized the parties' income, based on the length of marriage and Husband's fault. While consideration of these factors is within the trial court's discretion, entering "adequate factual findings on all material issues" is mandatory. Id. at ¶9. "In attempting to equalize the parties' income rather than going through the traditional needs analysis, the trial court abused its discretion." Id. at ¶12.

    Moreover, the record suggests that Wife's monthly financial needs may be less than her monthly income. To increase alimony beyond Wife's financial needs, detailed findings and rationale are needed. See Bingham v. Bingham, 872 P.2d 1065, 1068 (Utah Ct. App. 1994) ("[W]here the trial court has offered no explanation [for awarding alimony of $701 in excess of need] . . . the court should not have awarded [recipient] more than her established needs required . . . ."). In addition, because pertinent facts in the record are not "clear, uncontroverted, and capable of supporting only a finding in favor of the judgment,"(3) Bakanowski, 2003 UT App 357 at ¶9 (quotations and citations omitted), we remand for adequate findings on Wife's financial needs and condition and, if necessary, recalculation of appropriate alimony.

    Husband next argues that the trial court abused its discretion in awarding Wife $5000 in attorney fees because it failed to consider Wife's need for attorney fees or the reasonableness of the fees. A trial court may award attorney fees and costs in divorce proceedings. See Utah Code Ann. § 30-3-3 (Supp. 2004).(4) "[T]he trial court must base the [attorney fee] award on evidence of the receiving spouse's financial need, the payor spouse's ability to pay, and the reasonableness of the requested fees." Davis v. Davis, 2003 UT App 282,¶14, 76 P.3d 716 (quotations and citations omitted). The "award must be based on sufficient findings, and the failure to make such findings requires remand for more detailed findings by the trial court." Id. (quotations and citations omitted).

    Here, both parties' attorneys submitted affidavits detailing the amount of fees owed and how that amount was calculated. However, the trial court did not make any specific findings that $5000 in attorney fees was reasonable. Although Husband did not claim that the fees were actually unreasonable, this does not relieve the trial court of its duty to make specific findings as to reasonableness. See Utah R. Civ. P. 52(c) (findings of fact may not be waived in divorce actions); see also Rudman v. Rudman, 812 P.2d 73, 76 n.1 (Utah Ct. App. 1991). The trial court also did not make specific findings on Wife's financial need for attorney fees. Moreover, our remand of the alimony issue may have an impact on an award of attorney fees. Therefore, we remand the issue of attorney fees for specific findings as to the reasonableness of the award and Wife's financial needs.(5)

    Finally, Husband argues that the trial court erred by distributing his separate personal property and business property to Wife. We decline to address this issue because it is inadequately briefed.

    "It is well established that a reviewing court will not address arguments that are not adequately briefed." State v. Thomas, 961 P.2d 299, 304 (Utah 1998). In his argument on this issue, Husband cites general rules from several Utah cases, but does not provide reasoned analysis, or apply this authority to his argument. Husband neither cites to the record, except for a vague reference to "[p]age 111 and following," nor demonstrates how the property division granted by the trial court differs from what Husband sought at trial. Because Husband's legal analysis is "so lacking [it] shift[s] the burden of research and argument to [this] court," id. at 305, we decline to address this issue further.

    For these reasons, we reverse and remand the trial court's award of alimony and attorney fees, and affirm the trial court's division of property.

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Pamela T. Greenwood, Judge

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WE CONCUR:

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Russell W. Bench,

Associate Presiding Judge

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James Z. Davis, Judge

1. Husband also argues that the trial court inadequately calculated his ability to provide support. As is often the case with self-employed individuals, there was conflicting evidence at trial regarding Husband's income and business expenses. Because trial courts are "uniquely situated" to determine the "weight and credibility" of evidence, Kessimakis v. Kessimakis, 1999 UT App 130,¶16, 977 P.2d 1226, we determine that the trial court did not abuse its discretion regarding Husband's ability to provide support.

2. Later amendments to Utah Code section 30-3-5 added three additional factors not relevant to this appeal. See Utah Code Ann. § 30-3-5(8)(a)(v)-(vii) (Supp. 2004).

3. Indeed, the record indicates that Wife's financial need for alimony was one of the most hotly contested issues at trial.

4. Because the relevant sections of this statute have not been amended since the divorce decree, we cite to the most recent version for convenience.

5. There is a further reason why this attorney fee award is improper. Both parties claimed attorney fees in excess of $10,000, but the trial court awarded Wife only $5000. The trial court justified this award by characterizing the attorney fees as a "marital debt," and used its equitable powers to give Wife approximately half of her claimed fees. It is an abuse of discretion for a trial court to award less than the amount of fees claimed absent reasonable justification. See Bell v. Bell, 810 P.2d 489, 494 (Utah Ct. App. 1991). In addition, the trial court's rationale was incorrect because the attorney fees were not a marital debt; they were incurred after the parties separated, in order to dissolve the marriage.