Brockbank v. Brockbank

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Penny Brockbank,
Plaintiff, Appellee,
and Cross-appellant,

v.

James Lynn Brockbank,
Defendant, Appellant,and Cross-appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981113-CA

F I L E D
April 8, 1999

1999 UT App 116 -----

Seventh District, Price Department
The Honorable Bruce K. Halliday

Attorneys:
Brent D. Young, Provo, for Appellant
John E. Schindler, Price, for Appellee

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Before Judges Wilkins, Bench, and Billings.

WILKINS, Presiding Judge:

Defendant, James Lynn Brockbank (Mr. Brockbank) appeals the trial court's calculation of his monthly gross income for purposes of temporary and permanent support. Mr. Brockbank also challenges the trial court's alimony award. Plaintiff Penny Brockbank (Ms. Brockbank) cross-appeals, claiming the trial court abused its discretion in valuing Brockbank Appraisal Service (BAS) at $17,115. We affirm.

ANALYSIS

In divorce cases, trial courts are afforded broad discretion in determining the financial interests of the parties. SeeShepherd v. Shepherd, 876 P.2d 429, 433 (Utah Ct. App. 1994). Accordingly, income calculations and alimony awards will be upheld on appeal absent a clear and prejudicial abuse of discretion. See Breinholt v. Breinholt, 905 P.2d 877, 881-82 (Utah Ct. App. 1995). Thus, an appellant bears a heavy burden in challenging the trial court's findings of fact and resulting conclusions.

1. Gross Income for Temporary Support

Mr. Brockbank argues the trial court abused its discretion in determining that his gross income was $6,500 per month for purposes of temporary support. We disagree.

Typically, gross income is established by proof of current income. SeeHill v. Hill, 869 P.2d 963, 964 (Utah Ct. App. 1994). In this case, Mr. Brockbank submitted two financial statements showing his estimated gross income in 1995. The first statement reported that Mr. Brockbank's average gross monthly income from BAS between January and August 1995 was $9,237. However, the second financial statement reported that during that same time period Mr. Brockbank's average monthly income from BAS was $5,704, apparently reflecting the impact the loss of the Carbon County contract would have on his gross income.

Relying on this evidence, the trial court fixed Mr. Brockbank's monthly income at $6,500. This figure is not unreasonable, and is in fact less than the average of the two financial statements submitted by Mr. Brockbank. Furthermore, in a divorce action, it is within the trial court's discretion to evaluate the credibility of the evidence presented regarding the parties' financial condition. See Morgan v. Morgan, 854 P.2d 559, 563 (Utah Ct. App. 1993) (stating the "evaluation of the weight and credibility of . . . evidence is a matter for the trier of fact"). Finally, a trial court is not required to accept as true the financial statements submitted by the parties, but is free to adjust the amounts accordingly. SeeWilley v. Willey, 951 P.2d 226, 231 (Utah 1997). In light of the broad discretion accorded trial courts in this area and because Mr. Brockbank has failed to demonstrate that the trial court abused its discretion in calculating his gross monthly income at $6,500, we affirm the trial court's decision on this issue.

2. Gross Income for Permanent Support

Mr. Brockbank next argues the trial court abused its discretion in determining that his gross monthly income was $4,583 for purposes of permanent support. Again, we disagree.

Although the trial court initially concluded that Mr. Brockbank's gross income was $6,500 per month, the trial court later reduced this figure to $4,583 for purposes of permanent support. Based on this figure, the trial court implemented a retroactive modification of the amount of child support due under the temporary order. The trial court also terminated Mr. Brockbank's debt support obligation based on the modified figure. Although the trial court did not retroactively modify Mr. Brockbank's debt support obligation, this decision was within the legitimate exercise of the trial court's discretion. SeeSinclair v. Sinclair, 718 P.2d 396, 398 (Utah 1986).

We note that it is our duty to affirm the trial court's findings as long as there is competent evidence to support its determination. SeeAmerican Aggregate Corp. v. Otto Buehner & Co., 528 P.2d 147, 148 (Utah 1971). In this case, the trial court had before it the financial statement filed by Mr. Brockbank acknowledging that his gross monthly income in 1995, without the Carbon County contract, was $5,704. Furthermore, Dave Anderson, a certified public accountant, provided testimony that in 1995, Mr. Brockbank's gross income from BAS, excluding revenue produced by the Carbon County contract, was $51,618 or $4,301 per month. Thus, we conclude there was ample evidence supporting the trial court's determination that Mr. Brockbank's gross monthly income was $4,583 for purposes of permanent support. Accordingly, we affirm the trial court's ruling on this issue.

Mr. Brockbank also contends the trial court abused its discretion in determining that Mr. Brockbank received an additional $10,000 per year in income from his rental properties. However, Mr. Brockbank's brief contains no legal analysis or authority to support his position. Mr. Brockbank simply makes an unsupported assertion that the trial court's failure to calculate depreciation and rent consistently for both parties constitutes an abuse of discretion. See State v. Bishop, 753 P.2d 439, 450 (Utah 1988) ("'[A] reviewing court is entitled to have the issues clearly defined with pertinent authority cited and is not simply a depository in which the appealing party may dump the burden of argument and research.'" (citation omitted)). Therefore, we have no basis for concluding that the ruling of the trial court was anything other than proper.

3. Alimony Award

We next address Mr. Brockbank's contention that the trial court abused its discretion in awarding alimony without considering Mr. Brockbank's financial need. We disagree.

It is well settled in Utah that in awarding alimony the trial court must consider, among other factors, "the ability of the payor spouse to provide support." Utah Code Ann. § 30-3-5(7)(a)(iii) (1998). Implicit in this determination is a finding regarding the payor spouse's financial needs. See Breinholt, 905 P.2d at 880.

In this case, the trial court considered the income and liabilities of Mr. Brockbank, including his indebtedness and obligation to pay child and debt support. The trial court also considered "each part[y's] historic income, their present income, their respective ability to produce income . . . and [Mr. Brockbank's] ability to produce sufficient income to provide support . . . ." We conclude this was sufficient consideration of Mr. Brockbank's needs and therefore, affirm the trial court's alimony award.

4. Cross-Appeal

In her cross-appeal, Ms. Brockbank asserts the trial court abused its discretion in valuing BAS at $17,115. We disagree.

Because parties often place widely disparate values on assets to be distributed in a divorce proceeding, determination of the assets' value is a matter left to the sound discretion of the trial court. SeeTalley v. Talley, 739 P.2d 83, 84 (Utah Ct. App. 1987). The trial court in this case heard evidence from both parties concerning the value of BAS. The court was persuaded by Mr. Brockbank's argument that the value of BAS was due in large part to Mr. Brockbank's personal reputation and ability to perform. Accordingly, the trial court valued BAS in the amount of its fixed assets of $17,115.

The trial court was not required to accept Ms. Brockbank's valuation of BAS even though there was evidence to support it. See id. Instead, the trial court was free to access the weight and credibility of all evidence before it and adjust the figures submitted by the parties as it saw fit. See Shepherd, 876 P.2d at 433. Because Ms. Brockbank has not shown a clear abuse of discretion in the trial court's valuation of BAS we affirm its ruling on this issue.

Finally, Ms. Brockbank requests attorney fees on appeal. In divorce proceedings, when the trial court has awarded attorney fees below to the party who then prevails on the main issues on appeal, we generally award fees on appeal. See Hall v. Hall, 858 P.2d 1018, 1027 (Utah Ct. App. 1993). However, in this case, the trial court did not award attorney fees to either party. Therefore, regardless of whether Ms. Brockbank prevails in this action, she is not entitled to attorney fees on appeal. SeeLarson v. Larson, 888 P.2d 719, 727 (Utah Ct. App. 1994).

Affirmed.
 
 

______________________________
Michael J. Wilkins,
Presiding Judge

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I CONCUR:
 
 

______________________________
Russell W. Bench, Judge

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I CONCUR IN THE RESULT:
 
 

______________________________
Judith M. Billings, Judge