Peterson v. Peterson

----ooOoo----

Paula Jean Peterson,
Plaintiff and Appellant,

v.

Kent Courtney Peterson,
Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990829-CA

F I L E D
February 23, 2001 2001 UT App 51 -----

Fourth District, Provo Department
The Honorable Ray M. Harding, Jr.

Attorneys:
David A. McPhie, Salt Lake City, for Appellant
A. Howard Lundgren, Salt Lake City, for Appellee

-----

Before Judges Greenwood, Bench, and Orme.

ORME, Judge:

Alimony is ongoing post-marital support paid to an ex-spouse. It is not payments voluntarily made to a spouse during marriage, even if the spouses live apart, and it is not "separate support and maintenance" ordered to be paid pending resolution of the divorce proceeding in accordance with Utah Code Ann. § 30-3-3(3) (1998), although such support is sometimes casually referred to as "temporary alimony." Thus, despite verbiage suggesting otherwise in the findings of fact, this really appears to be a case where no alimony was awarded, and the question before us is whether failure to award alimony was an abuse of discretion. Butsee Thomas v. Thomas, 1999 UT App 239,¶¶13-15, 987 P.2d 603 (affirming "an award of alimony that ended before it began," because trial court gave credit for temporary alimony paid by appellee, where appellant's "transition into her new life . . . was complete" and appellant "had no need of alimony beyond that paid . . . under the temporary support order"). We are unable to make that determination because the trial court's findings of fact, while detailed in many respects, are inadequate, essentially because they are incomplete, as hereafter explained.

The court found that petitioner earns $600 per month, not counting social security income for the benefit of her adult daughter, and had reasonable monthly expenses of $2,415. However, petitioner concedes that some unspecified part of these monthly expenses is attributable to her daughter. Those expenses are not relevant to alimony calculation. Moreover, while findings 28-34 seem wholly irrelevant except in the context of imputing additional income to petitioner, and indeed strongly suggest the propriety of imputing such income to her, no specific amount of income is imputed to petitioner.

Because of the intricacies of respondent's income and expense picture, the unadorned findings that respondent's monthly income is $3,449, and thus less than his reasonable monthly expenses of $3,878, are also inadequate. To evaluate the propriety of those findings, we must know how they were derived, i.e., what expenses are included in the expenses total and how the income figure was determined. In connection with the income, it is particularly important that the trial court explain how it dealt with overtime compensation and historical income.

The various findings touching upon the duration of the marriage and respondent's relocation are perplexing. The finding that the parties' marriage "was effectively over as of August 1994" is clearly erroneous given, if nothing else, respondent's continued voluntary support of petitioner. Insofar as the trial court's purpose was to limit the number of years for which alimony could be awarded, Utah Code Ann. § 30-3-5(7)(h) (Supp. 2000) merely sets a maximum duration, and the court is free to award alimony for a shorter duration in the exercise of its sound discretion. Moreover, while we see no basis on which the trial court may fictionalize the length of the marriage for purposes of section 30-3-5(7)(a)(iv), we acknowledge that under section 30-3-5(7)(b) the circumstances leading to termination of the marriage, and each party's responsibility therefor, may well be germane. We also recognize that whether a marriage is of "short duration" for purposes of section 30-3-5(7)(c) & (f) is a relative and a factual matter, not an absolute and a legal one.

In conclusion, a more systematic approach on remand will better enable us to evaluate whether the trial court properly exercises its discretion to award--or not to award--alimony. The court should first find petitioner's earning capacity, including imputation of additional income if she is voluntarily underemployed. Then it should find her reasonable monthly expenses, taking into account the standard of living enjoyed during the marriage and excluding amounts attributable to the support of her adult daughter. If there is no shortfall between her reasonable expenses and earning capacity, the court's inquiry is at an end. See Bingham v. Bingham, 872 P.2d 1065, 1068 (Utah Ct. App. 1994) (noting "that the spouse's demonstrated need must . . . constitute the maximum permissible alimony award"). If there is a shortfall, the court should proceed to find respondent's actual expenses and then make whatever adjustment is necessary to find his reasonable expenses. It should then determine the amount of his income, fully spelling out its assumptions, adjustments, and calculations. If his reasonable expenses exceed his adjusted income, he presumably should not pay alimony other than as may be necessary "to equalize the parties' standards of living . . . [if this is a case] in which insufficient resources exist to satisfy both parties' legitimate needs." Williamson v. Williamson, 1999 UT App 219,¶11, 983 P.2d 1103. If his adjusted income exceeds his reasonable expenses, alimony should presumptively be ordered. However, alimony is never automatic, and if considerations spelled out in section 30-3-5, applicable case law, or principles of equity suggest otherwise, the presumptive amount may be reduced or restricted in duration, all as may be appropriate under the circumstances. However, determining that such adjustments are within the bounds of sound discretion is possible only if the trial court's rationale is spelled out with care.

The findings of fact entered by the court are vacated and the case is remanded for the entry of findings more fully explaining the rationale for the trial court's determination concerning alimony, and for such amendment to the alimony determination as the revised findings may suggest.
 
 
 
 
 

______________________________
Gregory K. Orme, Judge -----

WE CONCUR:
 
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 
 
 

______________________________
Russell W. Bench, Judge