Reddish v. Russell

Reddish v. Russell

IN THE UTAH COURT OF APPEALS
 

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Nichole P. Reddish,

Petitioner and Appellant,

v.

Samuel Russell,

Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040027-CA
 

F I L E D
(February 25, 2005)
 

2005 UT App 84

 

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Third District, Salt Lake Department

The Honorable Timothy R. Hanson

Attorneys: Grant W.P. Morrison, Salt Lake City, for Appellant

Scott B. Dopp, Kaysville, for Appellee

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Before Judges Bench, Davis, and Orme.

PER CURIAM:

    Nichole P. Reddish appeals from the trial court's denial of her petition to modify child support.

    In 1999, the parties stipulated to a modification of child support to the highest level provided in the statutory tables. Samuel Russell's income exceeded the table maximum, so he agreed to pay the highest scheduled child support amount. In 2001, Reddish petitioned for a modification of the child support order, alleging a substantial change in circumstance because Russell's income had increased threefold. The trial court denied her petition. Reddish asserts on appeal that the trial court erred in determining Russell's income and erred in finding no material change in circumstances.

    A trial court's findings of fact will not be set aside unless they are clearly erroneous. See 438 Main St. v. Easy Heat, Inc., 2000 UT 72,¶72, 99 P.3d 801. "When challenging the sufficiency of the evidence, an appellant must marshal the evidence in support of the findings and then demonstrate that despite this evidence, the trial court's findings are so lacking in support as to be against the clear weight of the evidence." Id. at ¶69 (quotations and citation omitted). Additionally, "'due regard shall be given to the opportunity of the [district] court to judge the credibility of the witnesses.'" Id. at ¶72 (quoting Utah R. Civ. P. 52(a)) (alteration in original). Furthermore, "[i]n reviewing child support proceedings, we accord substantial deference to the trial court's findings and give it considerable latitude in fashioning the appropriate relief." Ball v. Peterson, 912 P.2d 1006, 1009 (Utah Ct. App. 1996). Such relief will be overturned only if the trial court abused its discretion. See id.

    Even if Russell's income had substantially changed, Reddish is not automatically entitled to an increase in the child support award. The child support guidelines "shall be applied as a rebuttable presumption in establishing or modifying" the amount of child support. Utah Code Ann. § 78-45-7.2(2)(a) (2002 & Supp. 2004). The presumption means that the amounts of child support determined using the guidelines "are presumed to be correct." Id. § 78-45-7.2(2)(b). To overcome the presumption, a parent must show that the guideline amounts are unjust or inappropriate. See id. To award an amount beyond the guideline amounts, the trial court must find special circumstances that justify the deviation. See Hill v. Hill, 841 P.2d 722, 724-25 (Utah Ct. App. 1992).

    Russell had already topped out in the 1999 award, paying the highest amount provided in the tables. Where a parent's income exceeds the levels in the child support table, "an appropriate and just child support amount shall be ordered on a case-by-case basis." Utah Code Ann. § 78-45-7.12 (2002). In setting an appropriate and just amount, the trial court must consider the reasonable needs of the child. See Reinhart v. Reinhart, 963 P.2d 757, 760 (Utah Ct. App. 1998). Where income exceeds the guidelines, "the parties must introduce evidence to establish the reasonable needs of the children." Id. "A demonstration of an increase in the obligor's income alone is not sufficient to increase the child support order. The increase in ability to pay must be considered in light of the children's actual needs in fashioning an 'appropriate and just' child support award." Id.

    Under Reinhart, even if Russell's income substantially increased, Reddish is not entitled to additional child support absent a showing that the current amount is insufficient to meet the reasonable needs of their child. See id. (holding increase in income alone is not sufficient ground to increase child support). Reddish failed to make this showing.

    At trial, Reddish conceded that her listing of expenses was inaccurate and incomplete. She testified that some items listed were not legitimate activity expenses for the child. Reddish did not explain to the court's satisfaction how she could spend the alleged amounts and still make ends meet. Additionally, Reddish testified that the public school attended by the child had advanced programs and resources. There was no testimony that anything had been refused to the child.

    In announcing its ruling from the bench, the trial court noted the evidence it did not have, further indicating that Reddish had not met her burden. It did not have any evidence that the child's needs had changed from the time of the 1999 modification.(1) The court also did not have any evidence regarding the "extraordinary" needs of the child. There was no testimony from teachers that her needs were not being met at the public school, no testimony that her soccer talent justified her apparently high and expensive level of involvement in soccer, no testimony that all the activities, "assuming she's involved in them," were productive and good for the child. There was also no indication that the child's actual core needs such as food, clothing, health care, and shelter were not being met.

    The trial court found that the reasonable needs of the child were being met at the current level of support. The trial court questioned Reddish's credibility regarding expenses. The exhibit purporting to track expenses for the child's activities was admittedly inaccurate. The trial court also found that the amount allegedly spent on extracurricular activities, approximately $450 per month, was unreasonable.

    The testimony and other evidence presented at trial support the trial court's relevant findings. Furthermore, the trial court's determinations of credibility are entitled to deference. Reddish has not shown that the trial court's findings are clearly erroneous or that the trial court abused its discretion in denying the petition to modify child support.(2)

    Accordingly, the trial court's denial of the petition to modify child support is affirmed.

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Russell W. Bench,

Associate Presiding Judge

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James Z. Davis, Judge

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Gregory K. Orme, Judge

1. Reddish asserts this begs the question because the Office of Recovery Services did not evaluate the needs of the child in 1999. However, she could have presented evidence of expenses, activities, and needs in 1999 and shown they had changed by 2001. She did not do so.

2. Reddish additionally asserts Russell should have to pay all of the uncovered medical expenses of the child, but fails to reconcile the request with Utah Code section 78-45-7.15(6), requiring the parents to share this expense equally. See Utah Code Ann. § 78-45-7.15(6) (2002). Reddish also requested attorney fees, but because she is not the prevailing party, she is not entitled to them.