Bemis v. Bemis

----ooOoo----

Suzanne Marie Bilancia
aka Suzanne Marie Bilancia Bemis,
Petitioner and Appellant,

v.

Chris Thomas Bemis,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010364-CA

F I L E D
June 13, 2002 2002 UT App 201 -----

Fifth District, St. George Department
The Honorable G. Rand Beacham

Attorneys:
Michael D. Hughes and Stephen D. Foote, St. George, for Appellant
Lamar J. Winward, St. George, for Appellee -----

Before Judges Jackson, Greenwood, and Orme.

GREENWOOD, Judge:

Suzanne Marie Bilancia Bemis (Petitioner) appeals the trial court's denial of her Motion to Continue Payment of Alimony pursuant to the Stipulated Decree of Divorce. We affirm.

"Trial courts have broad discretion in awarding alimony. We will not disturb the trial court's alimony award so long as the trial court exercises its discretion within the standards set by the appellate courts." Haumont v. Haumont, 793 P.2d 421, 423 (Utah Ct. App. 1990) (internal citations omitted). Therefore, we review a trial court's decision regarding a denial of alimony for abuse of discretion. See id. at 424.

Petitioner argues that the trial court erred when it considered Respondent's ability to pay in deciding whether alimony should be extended or terminated. At issue is paragraph 15 of the Stipulated Decree of Divorce, which states:

In reference to alimony, as of October 1999, the Respondent shall pay to [P]etitioner $550.00 per month for alimony through September 2000. After September 2000, either party may reopen the issue of alimony to either allow for termination of the same, or alternatively the extension of alimony, based on the continuing status of Petitioner's disability. In any event, alimony would terminate upon Petitioner's remarriage or otherwise by law.

Petitioner contends that the only factor the trial court had discretion to consider in determining whether alimony should continue was the continuing status of Petitioner's disability. We disagree.

Paragraph 15 by its terms was a temporary order which allowed for alimony to be paid to Petitioner for one-year. The parties agreed to the amount of alimony during the one-year period of the Stipulated Divorce Decree, without a determination by the trial court of the statutory factors for awarding alimony. See Utah Code Ann. § 30-3-5(7) (1999). The reference in paragraph 15 to Petitioner's disability emphasized the important role that factor would play in the court's re-examination, but it could not so completely limit the trial court's discretion in fashioning a permanent alimony award. Because the trial court did not consider the statutory factors in section 30-3-5 in determining the amount of alimony in the temporary order, it was incumbent upon the court to examine them in determining a permanent alimony award. See Rehn v. Rehn, 1999 UT App 41,¶6, 974 P.2d 306 ("In determining whether to award alimony and in setting the amount, a trial court must consider the needs of the recipient spouse; the earning capacity of the recipient spouse; the ability of the obligor spouse to provide support; and the length of the marriage." (citing Utah Code Ann. § 30-3-5(7)(a)(i)-(iv) (1998)).

In reviewing Petitioner's Motion to Continue Alimony, the trial court considered Petitioner's permanent disability, social security benefits, inability to work, living expenses, rental income, lack of medical insurance, and her application for Medicaid or Medicare. The trial court also considered Respondent's income, expenses, child support arrearages, and his ability to earn more money. The court concluded that although Petitioner was in need, Respondent was not voluntarily under-employed and was unable to pay further alimony. In addition, the trial court considered the fact that the parties were only married approximately seven years, never earned substantial sums of money during the marriage, and their current living circumstances were about equal because they were living on about the same income and relying on the aid of their parents for the rest. Based on these findings, the trial court did not abuse its discretion in finding that Respondent was unable to pay alimony and in declining to extend the award. See Cox v. Cox, 877 P.2d 1262, 1268 (Utah Ct. App. 1994) (finding the denial of alimony justified where "the marriage was a short one, both parties suffered significant financial reversals, and . . . the financial condition and need of both parties are deplorable such that neither party now is able to meet respective financial obligations." (quotations and citations omitted)).

Petitioner argues that because the trial court declined to consider her petition for an increase in alimony without a showing of a substantial change of circumstances, the trial court did not have discretion to terminate alimony based on Respondent's inability to pay without a similar showing. The trial court may have erred in determining that its discretion was limited to either allowing alimony to be extended at its current rate or to terminate alimony. However, because ample evidence supports the trial court's determination that Respondent is unable to pay alimony, we find any error in declining to review Petitioner's motion for an increase to be harmless. See Van Der Stappen v. Van Der Stappen, 815 P.2d 1335, 1340 (Utah Ct. App. 1991) ("We are required to 'disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.'" (quoting Utah R. Civ. P. 61)).

Given the trial court's broad discretion in determining permanent alimony awards, we find that the trial court did not abuse its discretion in considering the statutory factors in its decision to terminate alimony. Therefore, we affirm the trial court's refusal to extend alimony payments to Petitioner.(1)
 
 

______________________________
Pamela T. Greenwood, Judge -----

WE CONCUR:
 
 

______________________________
Norman H. Jackson,
Presiding Judge
 
 

______________________________
Gregory K. Orme, Judge

1. Because we have determined the original alimony award was temporary and subject to re-examination by the trial court, Petitioner's res judicata argument is without merit.