Bowen v. Bowen

----ooOoo----

Steven Earl Bowen,
Petitioner and Appellee,

v.

Patricia D. Bowen,
Respondent and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000472-CA

F I L E D
August 23, 2001 2001 UT App 248 -----

Fifth District, St. George Department
The Honorable James L. Shumate

Attorneys:
Michael D. Hughes, St. George, for Appellant
James E. Slemboski, St. George, for Appellee

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Before Judges Greenwood, Bench, and Thorne.

GREENWOOD, Presiding Judge:

Patricia Bowen (Wife) appeals the trial court's post-divorce division of property and debts between her and her ex-husband, Steven Earl Bowen (Husband). Wife claims the division was inequitable and that the trial court abused its discretion in failing to properly identify premarital and marital property and debts, and in entering findings lacking an evidentiary basis. We agree in large part and reverse and remand.

"When a decree of divorce is rendered, the [trial] court may include in it equitable orders relating to . . . property, debts or obligations." Utah Code Ann. § 30-3-5(1) (Supp. 2000) (emphasis added). Utah appellate courts have long held that [t]he division of property is a matter that rests largely within the sound discretion of the trial court. Unless it appears from the findings that the division made is not equitable under all the circumstances of the case, an appellate court should not, and will not, disturb the order of the trial court. Pinney v. Pinney, 66 Utah 612, 245 P. 329, 331 (1926). "Because the [trial] court's distribution of property is endowed with a presumption of validity, we will not disturb it on appeal unless it is clearly unjust or a clear abuse of discretion." Rasband v. Rasband, 752 P.2d 1331, 1335 (Utah Ct. App. 1988) (internal citation omitted).

"The major purpose of a property division . . . 'is to achieve a fair, just, and equitable result between the parties.'" Haumont v. Haumont, 793 P.2d 421, 424 (Utah Ct. App. 1990) (citation omitted). "As a general rule, equity requires that each party retain the separate property he or she brought into the marriage." Id. Equity also generally requires that each party retain one-half of the marital property. See, e.g., Dunn v. Dunn, 802 P.2d 1314, 1319 (Utah Ct. App. 1990) (holding wife is entitled to one half of marital assets). "Some exceptions [may apply, however,] . . . where the property has been commingled . . . , or where it is fair, just and equitable to do otherwise." Id. at 1321 (internal citation omitted). The same equitable principles also apply to debts; thus, debts incurred before the marriage should generally be retained by the party who incurred them, and debts incurred during the marriage should generally be apportioned equally between the parties.

To accomplish an equitable division of property, the [trial] 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 then presumed to be entitled to all of his or her separate property and fifty percent of the marital property. Id. at 1323. The trial court's property and debt allocations must be based on adequate findings. See Utah R. Civ. P. 52(a); see also Haumont, 793 P.2d at 425. A trial court's "fail[ure] to enter specific, detailed findings supporting its financial determinations," Hall v. Hall, 858 P.2d 1018, 1021 (Utah Ct. App. 1993), constitutes an abuse of discretion that amounts to "reversible error unless the facts in the record are 'clear, uncontroverted and capable of supporting only a finding in favor of the judgment.'" Haumont, 793 P.2d at 425 (citation omitted).

In the present case, the findings and the amended findings of the trial court are inadequate to support the trial court's division of assets and debts. Therefore, for this reason and others explained herein, we reverse and remand this case to the trial court.

Neither party contests that Wife owned the Diamond Hills home, with a premarital debt of $30,000 at the time of the marriage, nor that Husband had a premarital Internal Revenue Service lien of $43,329. Nevertheless, the trial court failed to categorize either of these items as being part of the premarital or marital estate.(1)

It is also uncontroverted that Wife borrowed money on her premarital home after the marriage and that those proceeds were used to purchase the Diamond Valley and Winchester Hills lots, among other things. Similarly, it is undisputed that Wife obtained an $11,000 construction loan and that she titled the two lots in both parties' names to facilitate obtaining the loan shortly before the parties separated. The trial court's findings, however, are unclear as to whether it considered the Diamond Valley lot to be premarital property belonging to Wife or marital property that was awarded to Wife. Indisputably, both lots were purchased after the marriage with funds secured by Wife's premarital home.

A trial court is required to make findings when "the assets used to acquire . . . properties ha[ve] been commingled." Haumont, 793 P.2d at 425. The trial court's amended findings state: "The Court finds the joint marital assets and liabilities of both parties--established through the commingling of assets

. . . to [include the] . . . Winchester Hills lot." (Emphasis added.) While this finding is supported to some degree by joint ownership of the Winchester Hills lot, the trial court's decision to award the lot to Husband and allocate all the debt for the lot's purchase to Wife is not equitable.

As previously noted, equity generally requires that each party retain one-half of the marital property and share one-half of the marital debt. The trial court awarded the bulk of the marital assets to Husband (except, perhaps, the Diamond Valley lot) and assigned all the debt incurred to Wife. Such a distribution does not "'achieve a fair, just, and equitable result between the parties,'" id. at 424 (citation omitted), and is "clearly unjust." Rasband, 752 P.2d at 1335.

Similarly, the trial court's assignment of credit card debt to Wife as premarital debt is clearly erroneous and must be set aside because the debt was incurred during the marriage.

In short, the trial court's findings do not justify its unequal division of property and debts. Further, the trial court's findings imply that the parties' third divorce, which resulted after one party filled out a "Quick-Court Kiosk" form, resulted in an inequitable outcome. A kiosk divorce is designed to assist members of the public in quickly and inexpensively obtaining a divorce in uncomplicated cases and is not, as the trial court seems to suggest, inherently unfair. To the extent that the trial court sought to compensate for what it viewed as problematic results in the prior divorce, there is no legal or factual basis.

In addition, we note the history of protective orders in this case. The trial court held Wife in contempt for violation of one of those orders and, as punishment for her contempt, ordered her to pay Husband's attorney fees. "Courts should never exercise more than the least possible power adequate to the end proposed. A penalty, in a civil contempt proceeding, which bears no relation to the injury suffered is unauthorized." 17 C.J.S. Contempt § 117 (1999) (footnote omitted). The trial court acted inappropriately if it used the property division to further punish Wife for her contempt.

Whatever conclusion the trial court makes with respect to the Diamond Valley lot, i.e., that it is Wife's premarital property or post marital property belonging to both parties, the trial court should treat both the Diamond Valley and Winchester Hills lots similarly. Thus, if one lot is considered premarital property, the other lot must also be considered premarital property. Likewise, if one lot is considered marital property, the other lot must also be considered marital property. As a corollary, if the real and personal property purchased with funds borrowed against Wife's premarital home are treated as marital property, the debt incurred for those purchases should be treated as a marital debt to be divided equally between the parties. Thus, if the trial court determines the properties are marital property, each party should be awarded one-half of the property and one-half of the debt. Conversely, if the trial court determines the properties are Wife's premarital property, she should be awarded the property and the debt incurred in obtaining those properties.

Also, the trial court should include a finding on the tax lien because the parties agreed that it was Husband's premarital obligation. In addition, both parties should be ordered to hold each other harmless on debt allocated to the other.

Accordingly, we reverse and remand for entry of findings, conclusions of law, and a decree of divorce in accordance with the foregoing. "On remand, the trial court should follow the systematic approach set forth [herein]." Dunn, 802 P.2d at 1323.
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge -----

I CONCUR:
 

______________________________
William A. Thorne, Jr., Judge -----

I CONCUR IN THE RESULT:
 

______________________________
Russell W. Bench, Judge

1. With respect to the tax lien, the trial court specifically refused to address it, stating "no order is made with reference to the tax lien."