Shade v. Shade

Annotate this Case
Shade v. Shade. Filed November 12, 1999 IN THE UTAH COURT OF APPEALS


Victor E. Shade,
Plaintiff and Appellee,


Delores C. Shade,
Defendant and Appellant.

(Not For Official Publication)

Case No. 981386-CA

November 12, 1999
  1999 UT App 326


Third District, Salt Lake Department
The Honorable William A. Thorne

Steven C. Tycksen, Sandy, for Appellant
Victor E. Shade, St. George, Appellee Pro Se


Before Judges Wilkins, Billings, and Orme.


Delores C. Shade (Appellant) appeals the trial court's division of property and non-award of alimony and attorney fees under a divorce decree. We affirm.

Appellate review of a trial court's decision in a divorce action is limited:

There is no fixed formula upon which to determine a division of properties in a divorce action, the trial court has considerable latitude in adjusting financial and property interests, and its actions are entitled to a presumption of validity. Changes will be made only if there was a misunderstanding or misapplication of the law resulting in substantial and prejudicial error, the evidence clearly preponderated against the findings, or such a serious inequity has resulted as to manifest a clear abuse of discretion.

Naranjo v. Naranjo, 751 P.2d 1144, 1146 (Utah Ct. App. 1988). Appellant has failed to show that the trial court misapplied the law, that the evidence clearly preponderates against the court's findings, or that serious inequity has resulted from the trial court's decree.

Appellant argues that the trial court's distribution of real property and retirement accounts manifests a clear abuse of discretion. She bases her argument on her purported greater contribution to the equity in the couple's real property, part of which she brought into the marriage. It is undisputed that both parties contributed to the equity in the real property. The court found that the parties put the real property in their joint names and became co-owners of the marital property irrespective of their relative contributions. Consistent with the court's findings, each party took proceeds from the marital property without accounting to the other during the marriage. The court did not abuse its discretion in declining to adjust the couple's finances in contravention of the couple's apparent marital arrangement.

Furthermore, we are reluctant to review particular aspects of the trial court's property distribution separately from the division of the whole: "[I]t is 'inappropriate for this Court to reverse on an isolated item of property or debt distribution. Rather, this Court must examine the entire distribution to determine if the trial court abused its discretion.'" Id. at 1148 (citation omitted). Appellant asks us to review only isolated aspects of the property distribution but fails to show that she is prejudiced by the trial court's property distribution as a whole. We therefore affirm the trial court's division of property under the divorce decree.

Appellant also challenges the court's refusal to award alimony. We will not disturb a trial court's decision regarding alimony absent a clear and prejudicial abuse of the considerable discretion granted the trial court in determining the award. See Breinholt v. Breinholt, 905 P.2d 877, 879 (Utah Ct. App. 1995). Factors that the trial court must consider in determining an alimony award include the financial conditions and needs of the receiving spouse, the ability of the receiving spouse to produce a sufficient income, and the ability of the supporting spouse to provide support. See, e.g., Godfrey v. Godfrey, 854 P.2d 585, 589 (Utah Ct. App. 1993).

In this case, the trial court found: "Both parties are in need of more money that they do not have and both are medically disabled. The plaintiff is not able to pay alimony and did not ask any for himself. Hence no alimony is awarded to either party." In support of the above findings, the trial court determined that Appellant would have a monthly income of $1460, which would cover her monthly expenses of $1046, and that Appellee would have a monthly income of $1672, which would be inadequate to cover his monthly expenses of $2014. In addition, the court found that both were disabled and therefore would be unable to generate significant income beyond their respective retirement incomes. The court's conclusion that no alimony should be awarded is thus properly based on the factors that the court was required to consider.

Finally, Appellant challenges the trial court's refusal to award her attorney fees. Both the decision to award attorney fees and the amount of such fees are within the trial court's sound discretion. See Crouse v. Crouse, 817 P.2d 836, 840 (Utah Ct. App. 1991). As noted above, the trial court appropriately addressed the parties' relative needs and Appellee's ability to pay. In addition, the trial court found that Appellee would be unable to pay Appellant's attorney fees because he would be required to pay the couple's outstanding installment debt of approximately $4000. Based on Appellee's financial circumstances, the trial court acted within its discretion by not awarding attorney fees to Appellant.

In conclusion, we affirm the trial court's division of property and its refusal to award alimony and attorney fees.

Judith M. Billings, Judge



Michael J. Wilkins,
Presiding Judge

Gregory K. Orme, Judge