Davis v. Davis

----ooOoo---- Dennis Davis,

Plaintiff, Appellant,
and Cross-appellee,
v.

Monica Davis,

Defendant, Appellee,
and Cross-appellant. )
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) MEMORANDUM DECISION
(Not For Official Publication)

Case No. 971451-CA

F I L E D
(January 7, 1999)

1999 UT App 001

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Sixth District, Richfield Department
The Honorable Louis G. Tervort

Attorneys:
Darwin C. Fisher and Donald E. McCandless, Provo, for Appellant
Douglas L. Neeley, Ephraim, for Appellee

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Before Judges Wilkins, Greenwood, and Bench.

GREENWOOD, Associate Presiding Judge:

Both parties appeal the trial court's valuation and division of the equity in the parties' marital home, and the court's award of alimony. Ms. Davis also appeals the trial court's denial of her request for attorney fees. We reverse and remand as to alimony and attorney fees, and affirm on the issue of equity.

Equity in Marital Home
 

Both parties argue the trial court abused its discretion in valuing and dividing the equity in the marital home. Mr. Davis argues Ms. Davis was not entitled to receive any equity in the home because, he claims, it is premarital property. Ms. Davis counters that she is entitled to equity in the home, and that the trial court undervalued the home in dividing the equity.

A trial court's actions regarding the parties' property interests "'"are entitled to a presumption of validity."'" Breinholt v. Breinholt, 905 P.2d 877, 882 (Utah Ct. App. 1995) (citations omitted). Thus, "the trial court's valuation of marital property will not be disturbed absent a clear abuse of discretion." Godfrey v. Godfrey, 854 P.2d 585, 588 (Utah Ct. App. 1993).

In reviewing the evidence presented and the trial court's findings of fact, we conclude there was no abuse of discretion in the award to Ms. Davis of one-half of the home's equity accrued since the parties' marriage. The trial court adequately addressed facts relevant to the parties and the course of their marital relationship. Additionally, the trial court considered the substantial evidence presented by expert witness Joe Stott as to the home's value. Finally, no evidence was introduced by Ms. Davis to support her estimated valuation of the marital home. Accordingly, we cannot find a clear abuse of discretion which would merit reversal of the trial court's decision, and we affirm on this issue.
 

Alimony Award
 

Both parties appeal from the award of alimony. Mr. Davis asserts that the trial court's determination of alimony was not sufficiently supported by factual findings. "We will not disturb a trial court's alimony award absent a clear and prejudicial abuse of the considerable discretion granted the trial court in determining the award." Marshall v. Marshall, 915 P.2d 508, 516 (Utah Ct. App. 1996) (citation omitted). In awarding alimony, a trial court must consider: "'(1) the financial conditions and needs of the receiving spouse; (2) the ability of the receiving spouse to produce a sufficient income; and (3) the ability of the supporting spouse to provide support.'" Godfrey v. Godfrey, 854 P.2d 585, 589 (Utah Ct. App. 1993) (citations omitted); see also Utah Code Ann. § 30-3-5(7) (Supp. 1998). "A trial court abuses its discretion when it fails to consider the enumerated factors." Marshall, 915 P.2d at 516 (citation omitted).

In considering these factors, a trial court must also make sufficiently detailed findings to enable this court "'to ensure that the trial court's discretionary determination was rationally based upon'" the required factors. Willey v. Willey, 866 P.2d 547, 550 (Utah Ct. App. 1993) (citation omitted)). Thus, "'[i]f sufficient findings are not made, we must reverse unless the record is clear and uncontroverted such as to allow us to apply the . . . factors as a matter of law on appeal.'" Id. (citation omitted).

In this case, the trial court made the following findings regarding alimony: 5. The Plaintiff is fully capable of supporting himself and to pay the obligations incurred during the marriage.
6. The Defendant is in need of support from the Plaintiff and the Plaintiff has the ability to pay support based on his past and current income . . . . Because these findings do not adequately reflect a consideration of the relevant factors, and the evidence was controverted, we reverse and remand for additional findings and adjustment of the alimony award consistent with this opinion.
 

Attorney Fees
 

Ms. Davis challenges the trial court's denial of her request for attorney fees. In a divorce action, "[b]oth the decision to award attorney fees and the amount of such fees are within the sound discretion of the trial court." Crouse v. Crouse, 817 P.2d 836, 840 (Utah Ct. App. 1991). However, the trial court's decision whether to award attorney fees "'"must be based on evidence of the financial need of the receiving spouse, the ability of the other spouse to pay, and the reasonableness of the requested fees."'" Marshall v. Marshall, 915 P.2d 508, 17 (Utah Ct. App. 1996) (quoting Willey, 866 P.2d at 555 (additional citation omitted)). A trial court's "failure to consider any of the enumerated factors is ground for reversal on the fee issue." Id. at 517.

In denying Ms. Davis's request for attorney fees, the trial court entered no findings on the issue of attorney fees, but merely ordered that each party should "assume his/her own costs and attorney's fees incurred in prosecuting this action." Because the trial court failed to address any of the factors cited above, we reverse and remand for findings on each of the requisite factors.

Finally, Ms. Davis requests attorney fees on appeal. Because she has only prevailed in part on appeal, we hold that each party is responsible for his or her own attorney fees on appeal. See id. at 517.
 

CONCLUSION
 

The trial court did not consider the requisite factors in awarding alimony and attorney fees. Thus, we remand for appropriate findings and adjustment of these awards in accordance with this opinion. Because Mrs. Davis did not prevail on all issues on appeal, we deny her request for attorney fees on
appeal. In all other respects, we affirm the trial court's ruling.
 

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Pamela T. Greenwood, Associate Presiding Judge

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WE CONCUR:
 

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Michael J. Wilkins, Presiding Judge
 

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Russell W. Bench, Judge