Wardle v. Bowen

Wardle v. Bowen

IN THE UTAH COURT OF APPEALS
 

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Rebecca J. Wardle,

Petitioner and Appellee,

v.

Ricky Ray Bowen,

Respondent and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20031004-CA
 

F I L E D
(May 19, 2005)
 

2005 UT App 226

 

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Third District, Salt Lake Department, 970903297

The Honorable Frank G. Noel

Attorneys: Randy S. Ludlow, Salt Lake City, for Appellant

Steve S. Christensen, Salt Lake City, for Appellee

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Before Judges Billings, Greenwood, and Thorne.

GREENWOOD, Judge:

    Ricky Ray Bowen (Father) appeals the trial court's order granting Rebecca J. Wardle's (Mother) petition to modify the decree of paternity for their biological child (Child). We affirm in part and remand in part.

    Father first challenges the trial court's order increasing child support from $214.00/month to $461.12/month. We review a trial court's decision regarding child support for clear abuse of discretion. See Jensen v. Bowcut, 892 P.2d 1053, 1055 (Utah Ct. App. 1995).

    Father argues that the trial court abused its discretion in calculating his gross income for child support purposes.(1) We agree. The Uniform Civil Liability for Support Act (the Support Act), see Utah Code Ann. §§ 78-45-1 through -13 (2002), states that

[i]ncome from earned income sources is limited to the equivalent of one full-time 40-hour job. However, if and only if during the time prior to the original support order, the parent normally and consistently worked more than 40 hours at his job, the court may consider this extra time as a pattern in calculating the parent's ability to provide child support.

Id. § 78-45-7.5(2).

    The trial court determined that Father had a gross income for child support purposes of $5000.00/month (or $60,000.00/year). To arrive at this amount, the trial court found that Father averaged $64,333.00/year for the past three years, but discounted this amount by $4,333.00/year, stating that it would exclude his overtime pay in its calculation.

    This finding is not supported by the record. Father's pay stubs, included in the record, indicate that, for 2001, Father earned about $56,000, $7000 of which was attributable to overtime pay, or $49,000 exclusive of overtime; for 2002, Father earned about $77,000, $25,000 of which was attributable to overtime, or $52,000 exclusive of overtime; and through June of 2003 (half of the year), Father earned about $38,000, $8000 of which was attributable to overtime, or $30,000 exclusive of overtime. Therefore, the record indicates that over a three-year period, Father averaged about $53,000/year exclusive of overtime, and $16,000/year in overtime pay. Accordingly, the trial court's findings, as they are inconsistent with the salary evidence in the record, constitute an abuse of discretion.

    Furthermore, Father argues that the trial court should not have considered his overtime pay in its income calculation because his receipt of overtime was not regular and consistent over the past five years. Indeed, under the Support Act, the relevant inquiry is not the amount of overtime Father worked, but whether Father has "normally and consistently" worked overtime "during the time prior to the original support order."(2) Id. § 78-45-7.5(2) (emphasis added). The original support order, entered on August 10, 1998, did not include a finding that Father "normally and consistently worked more than 40 hours at his job." Id. Moreover, the trial court's finding that Father consistently worked overtime over the past five years was not entered until October 27, 2003, more than five years after the original support order. Thus, the trial court could not consider overtime pay in calculating Father's income for child support purposes.

    Accordingly, we remand this issue to the trial court for recalculation of Father's income and a new child support award based on this calculation.(3)

    Father also argues that the trial court abused its discretion by requiring him to pay for half of Child's daycare expenses. We disagree. Pursuant to section 78-45-7.16(1) of the Support Act, "each parent [shall] share equally the reasonable work-related child care expenses of the parents." Utah Code Ann. § 78-45-7.16(1) (2002). The trial court found that the prekindergarten daycare costs at the Challenger School were fair and reasonable, Father presented no evidence that the fees were unreasonable, and Mother "has not requested reimbursement from [Father] for any costs of private schooling for times when [Child] could have been in public school." We affirm because Father has failed to challenge any of these findings and, while the cost of Child's daycare may have increased, this does not relieve Father of his statutory responsibility to share these costs equally. See id.

    Father next claims that the trial court lacked jurisdiction to determine that Father's accrued obligation to pay his share of Child's daycare and medical expenses was not dischargeable in Father's 1999 bankruptcy. "The determination of whether a court has subject matter jurisdiction is a question of law, which we review for correctness, according no deference to the district court's determination." Beaver County v. Qwest, Inc., 2001 UT 81,¶8, 31 P.3d 1147.

    "Bankruptcy courts and state courts share concurrent jurisdiction over several of the exceptions to discharge enumerated in 11 U.S.C. § 523(a)." In re Crawford, 183 B.R. 103, 105 (Bankr. W.D. Va. 1995). Section 523(a)(5) of the Bankruptcy Code excepts from discharge any child support obligation resulting from a divorce, separation agreement, or other order of the court. See 11 U.S.C.A. § 523(a)(5) (2004). "[T]here is no time limit for filing a complaint . . . to determine dischargeability under section 523(a)(5)." In re Crawford, 183 B.R. at 106.

    Applying these principles to the case at hand, we conclude that the trial court properly assumed jurisdiction. The child support obligation stemmed from an order of the court--the paternity decree. Further, there is no question that Child's medical and daycare expenses are in the nature of child support. See Utah Code Ann. § 78-45-2(7) (2002) (defining "child support" to include medical expenses and child care costs). Accordingly, we affirm this issue.(4)

    Father's final claim is that the trial court abused its discretion in awarding attorney fees to Mother. "Both the decision to award attorney fees and the amount of such fees are within the sound discretion of the trial court." Griffith v. Griffith, 959 P.2d 1015, 1021 (Utah Ct. App. 1998) (quotations and citation omitted). A trial court may award "attorney fees . . . in the manner prescribed by Section 30-3-3 upon a judgment or acknowledgment of paternity." Utah Code Ann. § 78-45a-5(4) (2002). Section 30-3-3(2) authorizes attorney fees in an "action to enforce an order of . . . child support." Id. § 30-3-3(2) (1998). The attorney fee award must be based on evidence of the recipient's financial need, the payor's ability to pay, and the reasonableness of the fees. See Griffith, 959 P.2d at 1021.

    The trial court made explicit findings on all of these factors, with Father challenging only the finding regarding his ability to pay. On this factor, the trial court determined that Father had the ability to pay because he works regular overtime hours and has an income double that of Mother's. Although we determined that section 78-45-7.5(2) of the Support Act, see Utah Code Ann. § 78-45-7.5(2), forbade the trial court from considering Father's overtime in calculating Father's income for child support purposes, there is no such prohibition relating to attorney fees. Therefore, we conclude that the trial court acted within its discretion regarding Father's ability to pay and affirm the award of attorney fees.

    Lastly, Mother requests her attorney fees on appeal. "Generally, when the trial court awards fees in a domestic action to the party who then substantially prevails on appeal, fees will also be awarded to that party on appeal." Lyngle v. Lyngle, 831 P.2d 1027, 1031 (Utah Ct. App. 1992). Mother has substantially prevailed on appeal. Therefore, Mother is entitled to partial attorney fees on appeal, and we remand to the trial court for determination of the reasonable fees she incurred in resisting Father's appeal, except for an amount attributable to those fees incurred on the issue of Father's income.

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Pamela T. Greenwood, Judge

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WE CONCUR:

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Judith M. Billings,

Presiding Judge

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William A. Thorne Jr., Judge

1. Father also claims that the trial court should have considered child support of over $1000/month he is currently paying for his other children (not with Mother). We will not upset this decision, however, because the trial court has discretion to consider this obligation to mitigate an increase in a child support award. See Utah Code Ann. § 78-45-7.2(5) (2002) (providing that other children "may" be considered); see also Jensen v. Bowcut, 892 P.2d 1053, 1057 (Utah Ct. App. 1995) (agreeing that considering other children is in the trial court's discretion).

2. Our precedent permitting the trial court to consider overtime, see Jensen v. Bowcut, 892 P.2d 1053 (Utah Ct. App. 1995) and Hurt v. Hurt, 793 P.2d 948 (Utah Ct. App. 1990), is inapplicable because it was based on a former version of Utah Code section 78-45-7.5(2). See Utah Code Ann. § 78-45-7.5(2) (1989 & Supp. 1994) (providing that "[i]ncome from earned income sources is limited to the equivalent of one full-time job."). This subsection was amended to its current form in 1996. See id. § 78-45-7.5(2) (1996) (adding "40-hour" to the first sentence and the entire second sentence).

3. Although we find that the trial court abused its discretion in calculating Father's income, this does not mean that an increase in child support was not warranted. Even discounting overtime, Father's current income for child support purposes has increased substantially from the $1846.00/month he earned at the time of the original support order.

4. The trial court's conclusions of law cite section 523(a)(15) of the Bankruptcy Code rather than section 523(a)(5). However, in the trial transcript, the court discusses its jurisdiction and ruling in regards to section 523(a)(5), and, in fact, specifically distinguishes a subsection (5) debt from a subsection (15) debt. Thus, we disregard the trial court's reference to subsection (15) in its conclusions of law as a scrivener's error.