Kemp v. Kemp

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Kemp v. Kemp, Case No. 20000431-CA, Filed May 17, 2001 IN THE UTAH COURT OF APPEALS


Nancy L. Kemp,
Petitioner and Appellee,


Paul G. Kemp,
Respondent and Appellant.

(Not For Official Publication)

Case No. 20000431-CA

May 17, 2001 2001 UT App 157 -----

Third District, Murray Department
The Honorable Michael K. Burton

Pamela C. Urry and Phillip W. Dyer, Salt Lake City, for Petitioner
James H. Woodall, Salt Lake City, for Respondent


Before Judges Greenwood, Billings, and Thorne.

THORNE, Judge:

Appellant/cross-appellee Paul Kemp (Husband) and appellee/cross-appellant Nancy Kemp (Wife) appeal from the trial court's decree of divorce and award of alimony. We affirm in part, reverse in part, and remand for further proceedings in accordance with our decision.

First, Husband argues the trial court erred when it considered Wife's savings as a reasonable need in determining the alimony award amount.(1) "[S]o long as the trial court exercises its discretion within the bounds and under the standards we have set, and has supported its decision with adequate findings and conclusions, we will not disturb its ruling." Davis v. Davis, 749 P.2d 647, 649 (Utah 1988). When making an alimony determination "a trial court must consider the needs of the recipient spouse; the earning capacity of the recipient spouse; [and] the ability of the obligor spouse to provide support." Rehn v. Rehn, 1999 UT App 41,¶6, 974 P.2d 306; see also Jones v. Jones, 700 P.2d 1072, 1074 (Utah 1985).(2) A trial court must also consider that one of the principal underlying purposes of alimony is to enable "the receiving spouse to maintain, as nearly as possible, the standard of living enjoyed during the marriage." Rudman v. Rudman, 812 P.2d 73, 76 (Utah Ct. App. 1991).

Here, in detailed findings of fact, the trial court found that, during their marriage, the parties had made regular savings deposits to fund future major purchases, rather than making those purchases on credit. The court then concluded that Wife's attempt to include similar savings deposits within her post-divorce expenses was reasonable and reflected the parties' actual marital standard of living. As a result, the trial court determined that a $560 difference existed between Wife's earning capacity and her reasonable expenses, and therefore, awarded Wife $560 per month in alimony.

While we agree that savings deposits may not ordinarily qualify as reasonable necessary expenses, it does not follow that these expenses are automatically unreasonable. When considering alimony awards, trial courts have been instructed to attempt to maintain the recipient spouse's marital standard of living and not merely fund the barest of necessities. See Fletcher v. Fletcher, 615 P.2d 1218, 1223 (Utah 1980). Accordingly, we conclude that while including savings in the determination of need may be somewhat unusual, under these circumstances it does not amount to an abuse of discretion.

Wife also appeals the amount of the alimony award; however, she argues that the trial court erred by refusing to create income equity between the parties. While we agree that an alimony award should, whenever possible, be used to equalize the parties' standards of living, we have never required equality of income to reach this result. See Howell v. Howell, 806 P.2d 1209, 1213 n.3 (Utah Ct. App. 1991). We also note that, absent an abuse of discretion, a trial court's award of alimony is presumed valid. See id. at 1211. Here, the trial court carefully examined Wife's needs and her ability to produce income in direct relation to the requisite standard of living she enjoyed during the marriage. The court then used this information to craft its alimony award, and justified the award through detailed findings of fact. Therefore, because the trial court's conclusions are sufficiently supported by detailed findings of fact and are predicated on the parties' marital standard of living, we cannot conclude that the trial court abused its discretion in establishing the amount of the alimony award.

Wife next argues that the trial court erred when it made certain evidentiary rulings pertaining to the alimony award.(3) "[T]he trial court has a great deal of discretion in determining whether to admit or exclude evidence, and its rulings will not be overturned unless there is an abuse of discretion." Gorostieta v. Parkinson, 2000 UT 99,¶14, 17 P.3d 1110. Upon review of the questioned rulings, we conclude that the trial court acted within its sound discretion because (1) Husband stipulated to his ability to pay, and (2) the evidence was not relevant to the issue being decided. Therefore, we affirm the challenged evidentiary rulings.

Wife's chief argument on appeal is that the trial court inappropriately limited the duration of the alimony award. "Alimony may not be ordered for a duration longer than the number of years that the marriage existed . . . ." Utah Code Ann. § 30-3-5(7)(h) (Supp. 2000). But, a trial court should consider all known factors which may affect an alimony recipient's needs when crafting the alimony award. See Bollinger v. Bollinger, 2000 UT App. 47,¶19, 997 P.2d 903.

In the present matter, while crafting the alimony award, the trial court carefully considered Wife's reasonable needs in light of her marital standard of living. As a result, the trial court included Wife's desire for accelerated mortgage payments within its determination of Wife's reasonable needs.(4) The trial court then concluded that with the accelerated payments, Wife would be able to pay the entire amount due on the mortgage well before the scheduled due date. Wife's reasonable monthly expenses would then significantly decrease by the mortgage amount following the final payment,(5) and with this reduction in expenses, Wife would no longer have a need for alimony. The trial court, therefore, terminated the alimony award effective on Wife's sixty-fifth birthday.

We conclude that the trial court's order terminating the alimony award on the date of Wife's final accelerated mortgage payment is not an abuse of discretion.(6) However, we also conclude that the trial court failed to adequately pinpoint the expected actual date of the final mortgage payment. Accordingly, we remand for the limited purpose of determining when the final mortgage payment is scheduled. The trial court should then, if necessary, modify the alimony order to accurately reflect the planned date of the final payment.

Wife next argues that the trial court erred when it did not value the parties' retirement accounts as of the date of the divorce decree. "It is well settled that the present value . . . of retirement accounts accrued during the marriage, are marital assets and, whenever possible, should be valued as of the time of the divorce." Dunn v. Dunn, 802 P.2d 1314, 1319 (Utah Ct. App. 1990). The trial court here found that "because the parties resided in separate homes on December 31, 1998, and had divided certain tangible personal property [not including the aforementioned retirement accounts], these accounts shall be valued as of that date," and not May 9, 2000, the date the divorce decree was entered. Such a ruling is clearly an abuse of discretion. Accordingly, we remand, instructing the trial court to amend the decree, establishing the value of the parties' respective retirement accounts as of May 9, 2000.

Finally, Wife argues that the trial court erroneously denied her request for attorney fees. The decision to grant or deny a party's request for attorney fees in a divorce proceeding lies within the sound discretion of the trial court. See Bollinger, 2000 UT App 47 at ¶26; see also Utah Code Ann. § 30-3-3(1), (2) (1998). To qualify for an award of attorney fees, Wife must, at a minimum, demonstrate to the trial court that she has a financial need for the award.(7) See Marshall v. Marshall, 915 P.2d 508, 517 (Utah Ct. App. 1996). Here, after examining the evidence, the trial court found that: (1) Wife had a substantial amount of money available to her from her personal savings account; and (2) Wife had fully paid her attorney fees at the time of the decree. Therefore, the trial court concluded that Wife had failed to demonstrate the financial need necessary for an award of attorney fees and denied the motion. We accept the trial court's findings, and conclude that the trial court did not abuse its discretion when it denied Wife's motion for attorney fees.

We affirm the trial court's alimony award, and conclude that neither the amount awarded nor the duration ordered rises to the level of an abuse of discretion. However, we remand, instructing the trial court to make a definite finding concerning the expected date of Wife's final accelerated mortgage payment. We also affirm the trial court's denial of Wife's request for attorney fees. Finally, we reverse the trial court's ruling concerning the valuation of the parties retirement accounts and remand the issue for further proceedings consistent with this decision.

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


Pamela T. Greenwood,
Presiding Judge

Judith M. Billings, Judge

1. Husband also appeals the trial court's award of a lump sum to Wife within the alimony award. For purposes of this decision we consolidate this argument with Husband's general alimony argument.

2. Failure to consider these factors constitutes an abuse of discretion. See Marshall v. Marshall, 915 P.2d 508, 516 (Utah Ct. App. 1996).

3. Wife argues that the trial court erred in refusing to admit a portion of Husband's post-separation day-planner as well as evidence of Husband's interest in a familial trust. The trial court ruled that Husband's trust interest was speculative and therefore inadmissible. The court also ruled that, because the day planner pages were post-separation, they served no part in defining the parties' marital standard of living. The court further ruled that the evidence was irrelevant because Husband conceded his ability to pay alimony, and therefore, the evidence was unnecessary to the proceeding. Finally, Wife argues that the trial court erroneously permitted Husband to use a chart which purported to be a summary of Wife's expenses. However, the trial court merely allowed Husband to use the chart for illustrative purposes during his testimony, and then admitted it solely "for the purpose of illustrating his proposal."

4. The trial court found the parties' had followed a similar course during their marriage, and therefore it was reasonable to include accelerated mortgage payments as an expense.

5. The trial court seems to have concluded that this date would roughly coincide with Wife's sixty-fifth birthday.

6. "The trial court, of course, will retain continuing jurisdiction over the matter and may modify the decree on petition of a complaining ex-spouse if the circumstances should [materially] change in the future." Jones v. Jones, 700 P.2d 1072, 1076 (Utah 1985).

7. Additionally, a party must demonstrate the ability of the opposing party to pay the requested award and that the requested fees are reasonable. See Rehn v. Rehn, 1999 UT App 41,¶22, 974 P.2d 306. Because we affirm the trial court's finding that Wife failed to demonstrate the need required for an award of attorney fees, we do not address these additional factors.