Black v. Barney

----ooOoo----

Cherise Roundy Black,
Plaintiff and Appellee,

v.

V. Craig Barney,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990535-CA

F I L E D
December 21, 2000 2000 UT App 369 -----

Second District, Ogden Department
The Honorable Stanton M. Taylor

Attorneys:
Dean C. Andreasen, Salt Lake City, for Appellant
E. Jay Sheen, Salt Lake City, for Appellee -----

Before Judges Jackson, Davis, and Orme.

ORME, Judge:

ALIMONY

Trial courts are given broad discretion in making alimony awards, and "[w]e will not upset a trial court's award of alimony so long as the trial court exercises its discretion within the appropriate legal standards." Johnson v. Johnson, 855 P.2d 250, 252 (Utah Ct. App. 1993). Alimony is presumed to terminate upon the remarriage of the receiving spouse, but the trial court has the discretion to award alimony that will survive remarriage. See Utah Code Ann. § 30-3-5(8) (Supp. 2000). When awarding nonterminable alimony, the trial court must "make adequate and specific findings of fact justifying such an award." Johnson, 855 P.2d at 252.

The trial court made fifteen written findings in support of its nonterminable alimony award to Ms. Black. Most of these findings have no bearing on why the alimony should not terminate upon remarriage. Ms. Black's need for alimony and Mr. Barney's ability to pay alimony are both findings upon which every alimony award is already based. See Utah Code Ann. § 30-3-5(7)(a)(i), (iii) (Supp. 2000); Johnson, 855 P.2d at 252. "To allow nonterminable awards to be based on [such] justification alone would violate the statutory presumption against such awards[.]" Id. In addition, the findings that suggest Ms. Black has a legal interest in the benefits of Mr. Barney's dental degree are "legally impermissible" as a basis for an award of nonterminable alimony. Id. at 253.

The trial court did make three findings that embrace concepts that might support making alimony nonterminable in this case. First, the trial court found that Ms. Black sacrificed pursuit of a degree and career to raise a family and to aid Mr. Barney in obtaining his education. In Petersen v. Petersen, 737 P.2d 237 (Utah Ct. App. 1987), this court indicated that in certain situations where one spouse has "sacrificed so the other could attain a degree," an acceptable solution might be an award of "'rehabilitative' or 'reimbursement' alimony, not terminable upon remarriage." Id. at 242 n.4 (emphasis added).

Second, the trial court found that Mr. Barney and Ms. Black lived a lifestyle during their marriage which left them with no money and "virtually no assets to be divided among them at the end of the marriage." This left Ms. Black at a distinct disadvantage--minimal education, few marketable job skills, and almost no tangible assets to show for her 23 years of marriage. This finding tends to show the unique nature of this divorce and the possible need for a more creative alimony approach to achieve an equitable result.

Third, the court noted that Ms. Black "contributed $125,000 of her inheritance into the marriage." As part of the trial court's broad discretion in setting alimony, it may consider as a factor that one spouse allowed her inheritance--nonmarital property--to be used to pay expenses of the marital estate. See Sampinos v. Sampinos, 750 P.2d 615, 618 (Utah Ct. App. 1988).

But in light of the statutory presumption against nonterminable alimony, these three findings do not constitute the kind of findings of fact that are "adequate and specific" enough to justify the award. Johnson, 855 P.2d at 252. The trial court needed to be precise in explaining an alimony award that will approach almost $500,000 at the end of 23½ years. Instead, the court's fifteen findings are narrative in tone, with no quantitative factors showing how the resulting award was reached. The findings give no guidance as to whether the alimony award is necessary to rehabilitate Ms. Black or to reimburse her for contributions she made toward Mr. Barney's education, to somehow compensate her for the paltriness of the marital estate at the time of divorce, or to account for the contribution of her inheritance to the marital estate. If the alimony award is aimed at reimbursement, for example, the findings need to have a quantitative focus on how much Ms. Black lost in abandoning her education and career and the amount of alimony necessary to reimburse her. We remand so the trial court can reconsider the matter and make additional findings of fact. In so ordering, "[w]e do not intend our remand to be merely an exercise in bolstering and supporting the conclusion already reached," but recognize this exercise could lead to a different result. Allred v. Allred, 797 P.2d 1108, 1112 (Utah Ct. App. 1990).

CHILD SUPPORT

"Child support awards should approximate actual need and, when possible, assure the children a standard of living comparable to that which they would have experienced if no divorce had occurred." Ostler v. Ostler, 789 P.2d 713, 716 (Utah Ct. App. 1990). In cases where the combined income of the divorcing parents "exceeds the highest level specified in the [statutory] table, an appropriate and just child support amount shall be ordered on a case-by-case basis." Utah Code Ann. § 78-45-7.12 (1996). Before a trial court can make an award exceeding the highest guideline amount, "the parties must introduce evidence to establish the reasonable needs of the children," Reinhart v. Reinhart, 963 P.2d 757, 760 (Utah Ct. App. 1998), and the trial court must "consider and make specific findings on all 'appropriate and just' factors." Ball v. Peterson, 912 P.2d 1006, 1014 (Utah Ct. App. 1996) (citation omitted).

The trial court did not have the necessary quantitative evidence of the children's reasonable needs to make a proper determination of child support. The court's findings supporting its child support award are all in narrative form, with no discussion of the children's specific expenses or how the court calculated the award of $2,220. Instead, the court based its award on references to the "high standard of living" that the children were accustomed to and the need "to be maintained at their accustomed standard of living." Because of this lack of quantitative findings concerning the children's reasonable needs,(1) there is no way for us to determine whether the trial court's award was an abuse of discretion. We therefore remand this matter as well, so that the trial court can make specific findings that quantify the expenses associated with meeting the reasonable needs of the children.(2)

PROPERTY AND DEBT

In Utah, the distribution of property and debt upon divorce must be done in a fair and systematic way. See Burt v. Burt, 799 P.2d 1166, 1172 (Utah Ct. App. 1990). There is a presumption that each party is entitled to all of their separate property and fifty percent of the marital property. See id. at 1172. As for marital debt, the division is not necessarily based on an even split, but it must be equitable. See Sinclair v. Sinclair, 718 P.2d 396, 398 (Utah 1986).

Here, the trial court made an equitable distribution of the parties' meager property and much more substantial debt. The court awarded the marital home to Ms. Black but found that the home had no value because it was in foreclosure at the time of the divorce decree. As for the few remaining pieces of property, the trial court found that both the Montana duplex ($16,000 value) and the equipment used in Mr. Barney's dental practice ($40,000 value) were martial assets and accordingly awarded Ms. Black fifty percent of the value of each.(3) Finally, the court's order that Mr. Barney pay the $75,483 owed the IRS and Montana for past due taxes was reasonable under all the circumstances. The trial court correctly followed Utah law in allocating the parties' debt and property, and we find no abuse of discretion in this regard.(4)

CONCLUSION

Remanded for the limited purposes explained above; otherwise, affirmed.
 
 
 

______________________________
Gregory K. Orme, Judge -----

WE CONCUR:
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 

______________________________
James Z. Davis, Judge

1. Exhibit number 40, which detailed Ms. Black's monthly living expenses, did provide the trial court with some quantitative information concerning some of the expenses that were allocable to the children. For example, exhibit 40 allows for an accurate accounting of the children's pro rata share of the housing and utility costs. That exhibit, however, is the only quantitative evidence the court had to aid it in making its child support award.

2. The trial court was not under any obligation, as claimed by appellant, to utilize "an acceptable method of linear extrapolation to calculate the amount of the child support award." In fact, we have stated that "[s]trict reliance on linear extrapolation would be erroneous" when calculating such awards. Ball, 912 P.2d at 1014.

3. In his brief, Mr. Barney inaccurately labels the trial court's equal division of these two pieces of marital property as "Judgment Elements." Nowhere in either the Findings of Fact and Conclusion of Law or in the Divorce Degree does the trial court use that term.

4. As clarified at oral argument, the essence of Ms. Black's cross-appeal is that Sorenson v. Sorenson, 839 P.2d 774 (Utah 1992), is bad law and should be overturned. Ms. Black's counsel recognized that this court is not in a position to overturn Supreme Court precedent, but correctly perceived the need to preserve the issue in the event of Supreme Court review.