Jensen v. Jensen

----ooOoo----

Linda H. Jensen,
Petitioner, Appellant,
and Cross-appellee,

v.

James T. Jensen,
Respondent, Appellee,
and Cross-appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990465-CA

F I L E D
July 7, 2000 2000 UT App 213 -----

Third District, Salt Lake Department
The Honorable David S. Young

Attorneys:
Harold G. Christensen, Julianne Blanch, and Rodney R. Parker, Salt Lake City, for Petitioner
Clark W. Sessions and T. Mickell Jimenez, Salt Lake City, for Respondent

-----

Before Judges Bench, Billings, and Davis.

BENCH, Judge:

Mrs. Jensen (Wife) appeals the trial court's award of the Zions Bank stock and the ranch properties to Mr. Jensen (Husband), arguing that the trial court improperly determined that these were Husband's separate property. Husband cross-appeals, arguing that the trial court abused its discretion when it awarded Wife a two-thirds share of the marital estate, rather than the presumptive equal distribution, and when it awarded alimony to Wife. We affirm in part, and reverse and remand in part.

I. Wife's Appeal

Wife first argues that the Zions Bank stock, which Husband conveyed into joint tenancy in 1985, should have been considered marital property. "A transfer of otherwise separate property to a joint tenancy with the grantor's spouse is generally presumed to be a gift, . . . and, when coupled with an evident intent to do so, effectively changes the nature of that property to marital property." Bradford v. Bradford, 1999 UT App 373,¶22, 993 P.2d 887 (internal citations omitted; emphasis added); see Greener v. Greener, 116 Utah 571, 212 P.2d 194, 199 (1949) (requiring evidence of donative intent before presumption attaches). Wife correctly asserts that the presumption of present joint ownership, once attached, can only be overcome by clear and convincing evidence. See Neill v. Royce, 101 Utah 181, 120 P.2d 327, 331 (1941). We do not agree with Wife, however, that the evidence adduced at trial cannot be viewed as clear and convincing.

The trial court found that, "according to the testimony of the parties," the transfer to joint tenancy "was made to avoid probate in the event of [Husband's] untimely death," and that "[t]here was no evidence adduced at the trial of any donative intent." In reviewing the trial court's factual determinations, we "uphold the [trial] court's findings unless we find them to be 'clearly erroneous,' notwithstanding the 'clear and convincing' standard of proof below." In re R.R.D., 791 P.2d 206, 208 (Utah Ct. App. 1990) (citation omitted). We think that the evidence and the conclusions which could reasonably have been made therefrom were such to permit the mind of the trial judge to attain as a reasonable man to the state of being clearly convinced of the intent of the parties not to pass a present interest in the [Zions shares].
. . . Therefore, we think that the lower court must be upheld in his holding that the presumptions arising from the agreement joint in form . . . have been overcome by clear and convincing evidence. Greener, 212 P.2d at 206. In sum, we cannot say that the trial court clearly erred in determining that the intention of the parties in creating the joint tenancy was to protect Wife in the event of Husband's untimely death rather than a donative intention to create a present interest in Wife.

Wife next challenges the trial court's award of the ranch properties to Husband, arguing that the ranch properties should have been included in the marital estate because they were "commingled with marital assets and enhanced by the parties' joint efforts." The trial court determined that the ranch properties, which Husband largely received by gift or inheritance from his parents, were his separate property. In light of the record evidence before us, we cannot say that the trial court clearly erred in determining that there was no commingling of marital assets with the ranch properties and that Wife "went very infrequently to the [ranch] properties and there was no evidence that she augmented, maintained[,] or protected the properties."

II. Husband's Cross-Appeal

Husband's first argument in his cross-appeal is that the trial court abused its discretion in awarding a two-thirds share of the marital estate to Wife. In Utah, a specific procedure exists for property division and alimony awards: [T]he court should first properly categorize the parties' property as part of the marital estate or as the separate property of one or the other. Each party is presumed to be entitled to all of his or her separate property and fifty percent of the marital property. But rather than simply enter such a decree, the court should then consider the existence of exceptional circumstances and, if any be shown, proceed to effect an equitable distribution in light of those circumstances and in conformity with our decision. That having been done, the final step is to consider whether, following appropriate division of the property, one party or the other is entitled to alimony. Burt v. Burt, 799 P.2d 1166, 1172 (Utah Ct. App. 1990).

Despite this equal distribution presumption, the trial court divided the marital estate unequally, determining that "pursuant to its general equitable powers . . . certain assets should not be divided equally between the parties even though they [are marital property]." The procedure set forth in Burt requires the trial court to first determine which property is separate--removing it from further consideration--and then divide the remaining marital estate equally, unless exceptional circumstances are found. See id.

In the instant case, "[t]he trial court made no findings as to any exceptional circumstances which took this case out of the presumptive rule of Burt." Hall v. Hall, 858 P.2d 1018, 1023 (Utah Ct. App. 1993). Hence, we remand to the trial court to either divide the marital estate equally or provide sufficient findings as to the "exceptional circumstances" justifying departure from the presumptive equal distribution of the marital estate. The trial court's findings on remand must be "'sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on [this] factual issue was reached.'" Id. at 1021 (citation omitted).

Husband's final argument is that the trial court abused its discretion in awarding alimony. Trial courts are afforded "broad discretion in making alimony awards." Childs v. Childs, 967 P.2d 942, 946 (Utah Ct. App. 1998), cert. denied, 982 P.2d 88 (Utah 1999). However, we accord deference to the trial court only when it "exercised its discretion within the appropriate legal standards and 'supported its decision with adequate findings and conclusions.'" Id. (citations omitted). In this case, the trial court awarded alimony without considering the relevant statutory factors. See Utah Code Ann. § 30-3-5(7)(a) (Supp. 1999). Instead, the trial court based its decision on a determination that "[Wife] should not be required to live off the yield from her assets when [Husband] would not be required to do so by reason of his separate earned income." Accordingly, we remand to the trial court to make an appropriate analysis of the relevant factors before making an alimony award determination.(1)

CONCLUSION

We affirm the trial court's award of the Zions Bank stock and the ranch properties to Husband. We reverse the trial court's division of the marital estate and its award of alimony,  and remand for consideration of these two awards under the proper legal standards and procedures.
 
 
 
 

______________________________
Russell W. Bench, Judge -----

WE CONCUR:
 
 
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 
 
 

______________________________
James Z. Davis, Judge

1. Under the hierarchy set forth in Burt, the trial court must first divide the marital estate in accordance with our instructions on remand, and then proceed to consider alimony in light of the properly determined property award.