Osen v. Osen

----ooOoo----

Catherine M. Osen,
Petitioner and Appellee,

v.

Timothy F. Osen,
Respondent and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990015-CA

F I L E D
April 6, 2000
  2000 UT App 90 -----

Eighth District, Vernal Department
The Honorable Larry A. Steele

Attorneys:
Steven H. Gunn, Salt Lake City, for Appellant
Clark B. Allred and Gayle F. McKeachnie, Vernal, for Appellee

-----

Before Judges Greenwood, Bench, and Orme.

ORME, Judge:

The trial court in this case mixed property and support analysis to an unacceptable degree. The trial court must first divide the property before it can meaningfully determine the propriety of an alimony award. See Burt v. Burt, 799 P.2d 1166, 1170 n.3 (Utah Ct. App. 1990) ("Proper distribution of property interests of one sort or another should have come first, and only then would alimony need to be considered."). In dividing the marital property, the division should ordinarily be equal, but an unequal division can be justified by adequate findings. See Hall v. Hall, 858 P.2d 1018, 1022 (Utah Ct. App. 1993); Burt, 799 P.2d at 1172.

In this case, the court divided the marital property in an unequal way, but instead of justifying that division on its own terms, it sought to close the gap in the value of the parties' property shares by giving appellant credits against alimony and by observing that he had benefitted from not having to pay temporary support--an adjustment appellant characterizes as a retroactive award of temporary support.(1) Such an approach is questionable anyway because alimony can later be modified or terminate by operation of law. See Utah Code Ann. § 30-3-5(7)(g) & (8) (Supp. 1999). Thus, the present value of credits against alimony is entirely speculative.

However, the approach in this case was particularly inappropriate because the court found that appellee's reasonable expenses did not exceed her income. Thus, she had not demonstrated a need for alimony, see Georgedes v. Georgedes, 627 P.2d 44, 46 (Utah 1981), and the court erred in awarding alimony to better equalize the parties' incomes when there was no demonstrated need for alimony.(2) See Burt, 799 P.2d at 1170 & n.3.

However, on the record before us, remand to give the trial court an opportunity to make findings which more adequately support the unequal property division is not necessary. First, given certain findings explicitly made by the trial court and the objectives it quite obviously sought to accomplish, we are in a position to recognize findings impliedly made by the court. SeeMiller v. Martineau & Co., 1999 UT App 216, ¶46, 983 P.2d 1107; Hill v. Hill, 869 P.2d 963, 965 (Utah Ct. App. 1994). Second, it appears to us that the material evidence is not in dispute and the facts flow logically from it and need not really be "found." See City of Orem v. Henrie, 868 P.2d 1384, 1388 n.7 (Utah Ct. App. 1994).

With these precepts in mind, we conclude the disparate property award in this case is fully justified by the following facts which are manifest in the record. First, appellee has the custody of a minor child who needs housing, and it is in the child's best interest to remain in the home in which he has long lived. Second, the residential property awarded to appellee was on the appellee's family's estate and is surrounded by parcels gifted to appellee's various relatives, giving her a strong historical and present connection to it. Indeed, the marital property was procured, in part, through a trade of a parcel earlier distributed to appellee, which was her separate property. Finally, and perhaps most importantly, the only practical way to close the gap in value between the marital property distributed to each party would be to require appellee to sell or refinance the residence. Either way, this would necessitate her incurring significant housing expense that she does not now have and, given her somewhat marginal financial condition as found by the court, would necessarily result in a shortfall between her income and her expenses and lead to a significant alimony award, with concomitant future entanglement of the parties, that can otherwise be avoided.

Accordingly, on the basis of the foregoing we affirm the trial court's division of the marital property. We vacate the award of alimony. We otherwise affirm.(3) As both parties prevailed to a meaningful extent on appeal, each party will bear his or her attorney fees and costs on appeal. See Hall, 858 P.2d at 1027.
 
 
 
 

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

I CONCUR:
 
 
 
 

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

I CONCUR IN THE RESULT:
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge

1. Insofar as the trial court intended an award of retroactive interim alimony, its award in this context was contrary to the intent of the statute, which allows a party to move for interim alimony to meet the party's needs between separation and divorce. See Utah Code Ann. § 30-3-3(3) (1998) (stating "the court may order a party to provide money, during the pendency of the action")(emphasis added). It was not intended to be awarded as an afterthought in the final decree--especially when not requested by the benefitting party. See id. § 30-3-3(4) (allowing amendment to interim alimony entered "prior to entry of the final order")(emphasis added).

2. In view of this conclusion, there is no need to decide the level at which the trial court should have set appellant's income in fixing alimony.

3. In so holding, we agree that appellant waived his right to have the items of personalty valued when he did not put on such evidence at trial and, when given the opportunity by the trial court to do so post-trial, declined to avail himself of the opportunity.