Montague v. Montague

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Montague v. Montague, Case No. 20000155-CA, Filed April 19, 2001 IN THE UTAH COURT OF APPEALS


Michael C. Montague,


Moana Fairbanks Montague,

(Not For Official Publication)

Case No. 20000155-CA

April 19, 2001 2001 UT App 126 -----

Third District, Salt Lake Department
The Honorable William B. Bohling

Russell Y. Minas, Salt Lake City, for Appellant
David A. McPhie, Salt Lake City, for Appellee


Before Judges Billings, Davis, and Orme.

ORME, Judge:

The trial court's findings, based on largely uncontested evidence, adequately support the determination that a substantial and material change in circumstances occurred. See Utah Code Ann. § 30-3-5(7)(g) (Supp. 2000). Thus, the trial court correctly proceeded to consider whether some adjustment of the alimony award was in order.

Appellant contends that the trial court erred in finding that appellee's job loss was involuntary. We disagree--without necessarily implying that we accept the premise that if the cessation of his employment was voluntary, appellee would be forever required to pay alimony as before. The court heard testimony from several witnesses on the circumstances surrounding appellee's termination and considered exhibits from both sides. That the issue is not all black or white is clear from the tone of paragraph 2 of the Findings of Fact, but there is adequate evidentiary support for the proposition that, while appellee's volitional acts contributed to matters coming to a head, he did not want or intend to lose his job.

Finally, we review the trial court's adjustment of alimony only for an abuse of discretion. See Kelley v. Kelley, 2000 UT App 236,¶26, 9 P.3d 171. In the instant case, the court received financial declarations from both parties detailing their past and present incomes and expenses. While the trial court's written findings are not adequate to support its decision because they are too general in their focus, the court made what amount to findings of fact from the bench concerning the reasonableness of the parties' incomes and expenses, see Erwin v. Erwin, 773 P.2d 847, 849 (Utah Ct. App. 1989), and it adjusted the figures accordingly for the purpose of calculating an appropriate award of alimony.

Indeed, reviewing the trial court's explanation against the background of the financial declarations, testimony, and arguments, the trial court's rationale can be reliably reconstructed. The court adjusted appellee's reasonable expenses to $1778 by removing spousal support and attorney fees payments, and his income to $2071.14 by adding $500 by reason of his new wife's contributions. This left an excess of $293.14, which represents his ability to pay. The court allowed all of appellant's expenses, except it did not allow the full amount of her monthly elective retirement contribution. With this adjustment, appellant's income reaches $1515 while her expenses remain at $1568, leaving a demonstrated need of $53.

The court recognized the need for appellee to pay some amount monthly toward his attorney fees, as well as the need for appellant to make some monthly contribution to her retirement fund. An award of $150 is roughly half of appellee's "excess" income. More importantly, it covers appellant's monthly income-to-expense deficit, i.e., her demonstrated need, with nearly $100 more that would be available for retirement savings. Such an award is simply not unreasonable under all the circumstances.

The revised alimony award is within the broad range of discretion afforded the trial court. Affirmed.

Gregory K. Orme, Judge -----


James Z. Davis, Judge -----


Judith M. Billings, Judge