McKenzie v. McKenzie

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McKenzie v. McKenzie, Case No. 20000174-CA, Filed April 5, 2001 IN THE UTAH COURT OF APPEALS


Charles Deloy McKenzie,
Plaintiff and Appellant,


Kathy McKenzie,
Defendant and Appellee.

(Not For Official Publication)

Case No. 20000174-CA

April 5, 2001 2001 UT App 106 -----

Fourth District, Heber Department
The Honorable Gary D. Stott

Joseph T. Dunbeck, Jr., Heber City, for Appellant
J. Mark Smedley, Heber City, for Appellee -----

Before Judges Jackson, Bench, and Billings.


Charles Deloy McKenzie (Husband) appeals from the trial court's award of alimony and attorney fees to Kathy McKenzie (Wife). We affirm in part and reverse and remand in part.

The three factors a trial court must consider in fixing an alimony award are: "'(1) the financial conditions and needs of the receiving spouse; (2) the ability of the receiving spouse to produce a sufficient income; and (3) the ability of the supporting spouse to provide support.'" Marshall v. Marshall, 915 P.2d 508, 516 (Utah Ct. App. 1996) (quoting Godfrey v. Godfrey, 854 P.2d 585, 589 (Utah Ct. App. 1993) (citation omitted)).(1) Failure to consider these factors constitutes an abuse of discretion. See id. (citation omitted). "Thus, 'the trial court must make sufficiently detailed findings on each factor to enable a reviewing court to ensure that the trial court's discretionary determination was rationally based upon' the required factors." Id. (citation omitted). We emphasize that it is not enough for the trial court to make conclusory findings that one party has need and the other the ability to pay. Rather, the trial court's findings on each factor "'should . . . include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached.'" Rehn v. Rehn, 1999 UT App 41,¶6, 974 P.2d 306 (quoting Stevens v. Stevens, 754 P.2d 952, 958 (Utah Ct. App. 1988) (citation omitted)). For example, under the first factor, needs of the receiving spouse, the trial court must provide a monthly amount and "explain how it arrived at the monthly amount, or at least from the record, allow us to make this determination ourselves." Rehn, 1999 UT App 41 at ¶7 (citation omitted). Under the second factor, the trial court should specify the receiving spouse's established monthly income and "consider the 'historical roles' both parties played in the marriage," i.e., whether one party "was the primary caretaker of the parties' minor children." Id. at ¶9. Under the third factor, the trial court cannot simply state the obligor's earnings. See id. at ¶10. "To be sufficient the findings should also address [the obligor's] needs and expenditures, such as housing, payment of debts, and other living expenses." Id. (alteration in original) (citation omitted).

Husband argues that the trial court failed to consider the required factors and did not make sufficient findings in awarding alimony. The trial court awarded Wife alimony of $600 per month for two years. In its findings of fact, the trial court simply found that Wife "is in need of temporary spousal support in light of [Husband's] present income, [Husband's] ability to earn income, [and Wife's] ability to earn income as a minimum wage earner." In determining Wife's need for support, the trial court found that such "need for support is in part evidenced by the fact that she had to sell a vehicle in order to obtain additional monies to live on to support herself and the children." Moreover, the trial court did not make any findings as to Husband's net income or reasonable expenses in relation to his ability to pay alimony. The trial court's findings in support of the alimony award are not detailed enough to allow us to meaningfully review the award. Therefore, we must reverse unless the record is clear and uncontroverted as to allow us to apply the factors as a matter of law. See Marshall, 915 P.2d at 516. However, the record is not only unclear, it is deficient.

Thus, we reverse and remand on the alimony award and direct the trial court to make detailed findings on Husband's income and reasonable expenses and Wife's needs. Because the evidence in support of the three required factors is deficient, "[o]n remand, the trial court . . . should hear evidence concerning each of the [three factors] and enter [appropriate and detailed] findings." Moon v. Moon, 1999 UT App 12,¶30, 973 P.2d 431.

Moreover, we conclude the trial court's conclusion that Husband should pay alimony for two years was equally deficient. The trial court provided no meaningful justification for terminating alimony after two years. See Rudman v. Rudman, 812 P.2d 73, 77 (Utah Ct. App. 1991). Thus, if alimony is awarded on
remand, the trial court must also make findings to justify the duration thereof.

Husband next argues that the trial court abused its discretion in ordering him to pay Wife's attorney fees. "The decision to award attorney fees and the amount thereof rests primarily in the sound discretion of the trial court. However, the trial court must base the award on evidence of the receiving spouse's financial need, the payor spouse's ability to pay, and the reasonableness of the requested fees." Kelley v. Kelley, 2000 UT App 236,¶30, 9 P.3d 171 (citation omitted). Moreover, "[s]uch an award must be based on sufficient findings" regarding these factors. Rehn, 1999 UT App 41 at ¶22.

In the instant case, the trial court found that Husband "is employed and receives monthly compensation as a result of his employment. [Wife] is unemployed and has been unemployed for approximately two years. [Wife] is receiving public assistance by reason of her unemployed status and financial needs. In light of the parties' individual financial conditions, the Court finds that [Husband] shall pay the reasonable attorney's fees [sic] incurred by [Wife] in defending her claim."

As previously stated, it is uncontroverted that Wife has financial need given her reliance on public assistance. However, the trial court did not make sufficient findings on Husband's ability to pay the attorney fees, and there is not sufficient evidence in the record to determine the same. Furthermore, the trial court did not make a finding on the reasonableness of the attorney fees because no evidence had been submitted to the trial court to establish the same.(2)

Thus, we also reverse and remand the award of attorney fees and direct the trial court to make findings consistent with this memorandum decision.

Judith M. Billings, Judge -----


Norman H. Jackson,
Associate Presiding Judge

Russell W. Bench, Judge

1. We note that, pursuant to a 1999 amendment to Utah Code Ann. § 30-3-5(7)(a), a trial court is now required to consider four additional factors. Those include the length of the marriage; whether the receiving spouse has custody of minor children; whether the receiving spouse has worked in a business owned or operated by the supporting spouse; and whether the receiving spouse has contributed to any increase in the supporting spouse's earning ability. See Utah Code Ann. § 30-3-5(7)(a)(i)-(vii) (Supp. 2000).

2. Husband finally argues that the trial court abused its discretion in awarding the 1978 Ford truck to Wife. Husband argues that "given the generous award of the residence and the delay in recovering of his equity," he should receive the truck. However, we cannot say that the trial court abused its discretion in awarding the truck to Wife based on the argument advanced by Husband. The "generous award" of the residence was most assuredly aimed at benefitting the parties' two minor children who must live there. Furthermore, Wife had to sell the other vehicle, the 1995 Dodge, to support herself and her children. Thus, we affirm the trial court's award of the 1978 Ford truck to Wife.