Charlton v. Charlton

----ooOoo----

Dennis N. Charlton,
Plaintiff and Appellant,

v.

Michele Charlton (Richards),
Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990915-CA

F I L E D
April 12, 2001 2001 UT App 114 -----

Second District, Ogden Department
The Honorable Michael D. Lyon

Attorneys:
John T. Caine, Ogden, for Appellant
Timothy W. Blackburn, Salt Lake City, for Appellee

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Before Judges Jackson, Orme, and Thorne.
JACKSON, Associate Presiding Judge:

Dennis N. Charlton (Charlton) appeals the trial court's denial of his motion to modify the alimony award to his former wife, Michele Charlton (Richards).(1) We affirm.

Charlton first argues that the trial court erred in concluding that the alimony award did not specify what would automatically constitute a substantial change of circumstances. "To succeed on a petition to modify a divorce decree, the moving party must first show that a substantial material change of circumstances has occurred '"since the entry of the decree and not contemplated in the decree itself."'" Bolliger v. Bolliger, 2000 UT App 47,¶11, 997 P.2d 903 (citations omitted). Even assuming the trial court erred in its statement and conclusion that there was no automatic or other material change of circumstances, the ultimate ruling, denying modification of the alimony award on financial merits, is supported by the trial court's findings.

We review a trial court's decision whether to modify an alimony award for abuse of discretion. See Moore v. Moore, 872 P.2d 1054, 1055 (Utah Ct. App. 1994). A conclusion that there has been a substantial material change in circumstances does not necessarily require modification of an alimony award. When the court concludes that a substantial material change of circumstances has occurred, "the court must 'then consider the three factors set out in Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985), to support a modification of an alimony award.'" Moon v. Moon, 1999 UT App 12,¶29, 973 P.2d 431 (citation omitted). These factors are "'[1] the financial conditions and needs of the [recipient spouse]; [2] the ability of the [recipient spouse] to produce a sufficient income for [him- or] herself; and [3] the ability of the payor spouse to provide support.'" Id. (alterations in original) (citation omitted). Utah Code Ann. § 30-3-5(7)(a) (Supp. 1996)(2) adds length of marriage to these factors, which "apply not only to an initial award of alimony, but also to a redetermination of alimony during a modification proceeding." Williamson v. Williamson, 1999 UT App 219,¶8, 983 P.2d 1103; see also Utah Code Ann. § 30-3-5(7)(a).

Charlton argues that the trial court improperly focused on equalization of income rather than on the Jones factors. In its review, the trial court fulfilled its duty to make findings of fact on the Jones factors. See Williamson, 1999 UT App 219 at ¶9. The court made findings of fact regarding Richards's financial condition and needs. The court found that she did not have the ability to produce sufficient income for herself, and that Charlton had the ability to provide support. The trial court also made findings on the length of the marriage. Additionally, the trial court conducted a detailed analysis and found that income tax effects on alimony payments would reduce the amount actually available to Richards, while moderating the impact on Charlton. Moreover, the court specifically found that Richards's "standard of living was still below that which she had enjoyed during the marriage." We note that the divorce decree does not contain a specific baseline finding regarding Richards's needs such that we can independently verify that her alimony, when added to her salary, still does not equal her reasonable financial needs as calculated in light of the marital standard of living. Although we would prefer to have a baseline finding, the same judge presided over all of the relevant proceedings. Because of his ongoing involvement, we conclude that his findings are sufficiently reliable to support his ultimate conclusion denying modification of the original alimony award. Relying on the trial court's findings of need, insufficient ability of Richards to support herself at the marital standard of living, and Charlton's ability to contribute, we find no abuse of discretion in the court's ruling.

Finally, we turn to whether Richards should be awarded costs or fees under Rule 33 of the Utah Rules of Appellate Procedure. We conclude that, while ultimately unsuccessful, the appeal was not filed for the purpose of "caus[ing] needless increase in the cost of litigation" as Richards asserts. Utah R. App. P. 33(b). Thus, we decline to impose costs or fees under Rule 33.

We affirm the trial court's decision to deny modification of the alimony award, and we decline to impose costs or fees on appeal.
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge -----

WE CONCUR:
 
 

______________________________
Gregory K. Orme, Judge
 
 

______________________________
William A. Thorne, Jr., Judge

1. The divorce decree was entered on August 2, 1993. Charlton filed his petition to modify the divorce decree on August 22, 1995. The trial court denied the petition on May 21, 1996, but stated it would revisit the issue after six months had passed. When the court revisited the issue in 1997, it again denied the petition. The trial court also ruled that Richards's reasonable monthly expenses were $2,905.00, and that these expenses provided her with a standard of living which did not exceed the level enjoyed during the marriage. On September 20, 1999, the court denied Charlton's motion to amend the 1997 ruling.

2. The 1995 amendment to Utah Code Ann. § 30-3-5 deleted portions, renumbered portions, and added portions to the section. Section 30-3-5(7) was added and became effective May 1, 1995, approximately three and one-half months before Charlton filed his petition to modify the alimony award. See Utah Code Ann. § 30-3-5 (Supp. 1996). The 1995 amendment was first published in the 1996 supplement. See id.