Barber v. Barber

Patricia Barber v. Sam John Barber, Jr., Case No. 961783-CA, Filed October 8, 1998. IN THE UTAH COURT OF APPEALS

----ooOoo----   MEMORANDUM DECISION (Not For Official Publication)


Patricia Barber, Plaintiff and Appellant,

v.

Sam John Barber, Jr., Defendant and Appellee.

Case No. 961783-CA

F I L E D (October 8, 1998)   -----  

Second District, Ogden Department

The Honorable Michael D. Lyon

Attorneys: Robert L. Neeley, Ogden, for Appellant

Douglas B. Thomas, Layton, for Appellee -----  

Before Judges Davis, Wilkins, and Greenwood.

GREENWOOD, Judge:

Appellant, Patricia Barber (Mrs. Barber), appeals the trial court's valuation of the interest of her ex-husband, Sam Barber (Mr. Barber), in five business entities jointly owned and managed by Mr. Barber and his three brothers. Mrs. Barber also appeals the trial court's child support and alimony award, as well as the trial court's refusal to award her attorney fees and costs. We affirm but remand for clarification regarding a possible clerical error at trial. Business Valuation  
In a divorce case, trial courts have "considerable discretion in determining the financial interests of divorced parties." Hall v. Hall, 858 P.2d 1018, 1021 (Utah Ct. App. 1993). Accordingly, property and alimony awards "will be upheld on appeal unless a clear and prejudicial abuse of discretion is demonstrated." Howell v. Howell, 806 P.2d 1209, 1211 (Utah Ct. App. 1991). Thus, Mrs. Barber bears a heavy burden in appealing from the trial court's findings of fact and resulting conclusions.

At trial, each party called two expert witnesses to testify as to the value of Mr. Barber's business assets. Mrs. Barber argues that the trial court erred in weighing this evidence and coming to a final valuation by averaging the appraisals of the four witnesses. We disagree. The trial court carefully considered the evidence presented at trial and afforded the testimony of each witness the appropriate weight.(1) See D'Aston v. D'Aston, 844 P.2d 345, 355 (Utah Ct. App. 1992)(holding determination of credibility of witnesses is solely within the discretion of trial court); see also State v. Pena, 869 P.2d 932, 936 (Utah 1994). Finally, the trial court calculated the total business value by averaging the valuations for each witness-- thus valuing the business well within the range of values presented at trial. See Godfrey v. Godfrey, 854 P.2d 585, 588 (Utah Ct. App. 1993) (holding trial court should value marital property within range of values established in trial testimony). Because trial courts are afforded broad discretion in valuating marital property in a divorce proceeding and the trial court did not abuse its discretion in valuating Mr. Barber's business interests, we affirm the trial court's calculation of the value of Mr. Barber's business interests. Salary  
When valuing Mr. Barber's business interests, both parties' expert witnesses considered charitable contributions made by the businesses by adding those amounts back into the income stream of the business and multiplying by a factor. Mrs. Barber challenges the trial court's failure to also include charitable contributions attributable to Mr. Barber in calculating Mr. Barber's income. The trial court found that the business entities are jointly owned and managed by Mr. Barber and his brothers. In addition, Mr. Barber and his brothers have a close working relationship and cooperate in making business decisions, including the decision to make charitable contributions. Therefore, as a practical matter, Mr. Barber could not take a portion of these contributions as income without the agreement of his brothers which is unlikely considering the brothers all have comparable incomes and any salary increases and commensurate reductions in charitable contributions must be jointly agreed upon. Based on the trial court's findings and the evidence presented, the trial court did not abuse its discretion by refusing to include the charitable contributions in Mr. Barber's salary on the grounds that it would constitute a "double charge."

The trial court also found that Mr. Barber's salary, including the various perks from the business, totaled $96,300.00. The court then set child support and alimony based on this figure. We find no abuse of discretion by the trial court in calculating Mr. Barber's salary and basing child support and alimony awards on this figure. Duration of Alimony  
Mrs. Barber challenges the trial court's alimony award. Upon review of a trial court's alimony award in divorce cases, this "court will not disturb the trial court's award of spousal support absent a showing of a clear and prejudicial abuse of discretion." Rasband v. Rasband, 752 P.2d 1331, 1333 (Utah Ct. App. 1988). Mrs. Barber argues the trial court erred in awarding alimony that would terminate after the time period of the length of the marriage. Under Utah Code Ann. 30-3-5(7)(h) (Supp. 1998), "[a]limony may not be ordered for a duration longer than the number of years that the marriage existed unless, at any time prior to termination of alimony, the court finds extenuating circumstances that justify the payment of alimony for a longer period of time." Because Mrs. Barber has failed, at this time, to show extenuating circumstances which would warrant extending alimony beyond the length of the marriage, the trial court did not abuse its discretion in awarding alimony in compliance with Section 30-3-5(7)(h). This holding, however, does not foreclose Mrs. Barber's ability to seek a modification of the alimony award at an appropriate time if she then asserts extenuating circumstances. See id. 30-3-5(7)(g). Attorney Fees and Costs  
Mrs. Barber challenges the trial court's refusal to award her attorney fees and costs. Utah Code Ann. 30-3-3 (1995) "grants trial courts the power to award attorney fees in divorce cases" but the award "must be based on evidence of the reasonableness of the requested fees, as well as the financial need of the receiving spouse and the ability of the other spouse to pay." Crouse v. Crouse, 817 P.2d 836, 840 (Utah Ct. App. 1991). However, the decision whether to award attorney fees is within the sound discretion of the trial court. See id. Consequently, we review the decision to award attorney fees and costs under an abuse of discretion standard.

In determining whether attorney fees and costs should be awarded to Mrs. Barber, the trial judge considered the financial condition of both parties. The court found, among other things, that Mr. Barber is unable to cover his monthly expenses. In contrast, the trial court found that Mrs. Barber is in a better financial situation. Mrs. Barber's income, business pay-out, child support, and alimony provide her with enough income to cover her monthly expenses. In addition, Mrs. Barber intentionally delayed the trial proceedings by failing to appoint new counsel after her original counsel withdrew from the case. Mr. Barber argues that the trial court was correct in refusing to award attorney fees to Mrs. Barber in light of the fact that both she and her attorney intentionally delayed the trial proceedings. The trial court, however, found that these delays, while intentional, were merely tactical and thus imposed no sanctions on Mrs. Barber. The trial court accordingly refused to award attorney fees and costs to Mrs. Barber. Because these findings were supported by substantial evidence presented at trial, it was not an abuse of discretion for the trial court to refuse to award attorney fees and costs to Mrs. Barber. Clerical Error

Mrs. Barber also argues the trial court made a clerical error in averaging the four valuations made by the parties' witnesses. Mr. Barber's witness, Mark Papanikolas, changed his original valuation from $473,700.00 to $562,700.00. However, in averaging the totals, the court used Mr. Papanikolas's original figure. Mrs. Barber relies on Stanger v. Sentinel Sec. Life Ins. Co., which holds that under Utah Rule of Civil Procedure 60(b), clerical mistakes resulting from oversight or omission may be corrected at any time during the appeals process. 669 P.2d 1201, 1206 (Utah 1983). Mr. Barber contends there was no clerical error and argues the trial court exercised its discretion in choosing to disregard Mr. Papanikolas' changes in its final calculation. Because it is unclear from the record whether this was a clerical error or an intentional omission, we remand this case to the trial court for the limited purpose of clarification and correction, if appropriate, on this issue. See Bagnall v. Suburbia Land Co., 579 P.2d 917, 918 (Utah 1978) (holding trial court may correct clerical error after appellate court has affirmed trial court's decree). Conclusion  
The trial court did not abuse its discretion in valuating Mr. Barber's business interests and dividing this marital asset accordingly. Similarly, it was not an abuse of discretion to fail to impute charitable contributions made by the brothers' businesses to Mr. Barber's salary. In addition, the trial court's child support and alimony awards were proper and its refusal to award attorney fees and costs was reasonable and within its discretion. Therefore, the judgment of the trial court is affirmed and this case remanded for clarification regarding the alleged clerical error.
 
 
 
 

______________________________

Pamela T. Greenwood, Judge -----  

WE CONCUR:
 
 
 
 

______________________________

James Z. Davis,

Presiding Judge
 
 
 
 

______________________________

Michael T. Wilkins,

Associate Presiding Judge

1. Specifically, the trial court found the testimony of Mark Papanikolas credible despite the possibility of bias argued by Mrs. Barber. We find no error in the trial court's decision to allow Mr. Papanikolas' testimony, reserving for itself the task of weighing his testimony. In addition, we find no error in the trial court's rejection of the capitalization of excess earnings valuation method utilized by Appellant's expert witness, Mr. Yeanoplos.