Chavez v. Chavez

----ooOoo----

Tamra Anne Chavez,
Petitioner, Appellee,
and Cross-appellant,

v.

Dennis M. Chavez,
Respondent, Appellant,
and Cross-appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000970-CA

F I L E D
June 20, 2002 2002 UT App 213 -----

Third District, Salt Lake Department
The Honorable Raymond S. Uno

Attorneys:
Bert L. Dart and Kent M. Kasting, Salt Lake City, for Petitioner
Roger D. Sandack, Salt Lake City, for Respondent -----

Before Judges Billings, Davis, and Greenwood.

GREENWOOD, Judge:

Dennis Chavez (Husband) appeals the trial court's allocation of marital property, alimony, and attorney fees. Tamra Chavez (Wife) cross appeals the allocation of marital property. We affirm.

In reviewing the allocation of marital property: "We afford the trial court 'considerable latitude in adjusting financial and property interests, and its actions are entitled to a presumption of validity.' Accordingly, changes will be made in a trial court's property division determination in a divorce action 'only if there was a misunderstanding or misapplication of the law resulting in substantial and prejudicial error, the evidence clearly preponderated against the findings, or such a serious inequity has resulted as to manifest a clear abuse of discretion.'" Bradford v. Bradford, 1999 UT App 373,¶25, 993 P.2d 887 (citations omitted). The parties contest the trial court's treatment of the loan payment proceeds from Chavez, Inc., the debt owed to Husband's father, various articles of personal property, and the award of stock to Husband. The trial court heard extensive, conflicting evidence as to each of these matters and made a determination based on the evidence and the credibility of the witnesses. We will not second guess the trial court's assessment of credibility. See Cooke v. Cooke, 2001 UT App 110,¶11, 22 P.3d 1249. Furthermore, there is sufficient evidence in the record to support the trial court's determinations. Therefore, based on the foregoing, the trial court did not abuse its discretion in dividing the marital assets.

Husband also argues that the trial court erred in inequitably dividing the marital property. When dividing the marital assets, this court has stated that "[w]hile equality is a worthy goal, precise mathematical equality is not essential or required." Canning v. Canning, 744 P.2d 325, 329 (Utah Ct. App. 1987). Also, "'we recognize the power of the trial court to effect an equitable distribution of property by considering both parties' . . . 'circumstances at the time of the divorce.'" Hall v. Hall, 858 P.2d 1018, 1023 (Utah Ct. App. 1998) (citation omitted). However, when there is a significant disparity between the portion of the marital estate each party is awarded, we require that the trial court "memorialize in commendably detailed findings" the exceptional circumstances justifying the trial court's unequal distribution of property. Bradford, 1999 UT App 373 at ¶27; see Thomas v. Thomas, 1999 UT App 239,¶22, 987 P.2d 603 ("[M]arital property may be allocated unequally where circumstances justify departure from the presumptive rule of equal distribution." (Citation and quotations omitted.)). In this case, the trial court found:

Where gifted property, which includes practically all of the income-generating sources enjoyed by the parties during their marriage is awarded one spouse, the remaining property need not necessarily be divided equally. Such as in this case, there is need to provide for [Wife] adequate income to enable her to begin her post-marital life with some degree of economic self-sufficiency. [See] In re the Marriage of Pierson, 653 P.2d [1258,] 1262 ([Or.] 1982)[.] [A]lso there is a need to fairly "divide the economic assets and income stream of the parties so as to permit both to maintain themselves after the marriage as nearly as possible at the standard of living enjoyed during the marriage." Mortensen v. Mortensen, 760 P.2d [304,] 310 [(Utah 1988)] (Zimmerman[, J.,] concurring).

A letter from the trial judge to the parties' respective counsel further states that [i]n the long run, [Husband] will continue to have his income stream intact and hopefully [Wife] will have the opportunity to establish herself and become self-sufficient. [Husband], over time, will be able to recoup any losses he may feel he has temporarily sustained and from this property division should be able to reestablish himself in the future. Therefore, given the trial court's great discretion in allocating property and the commendable detail of the trial court's findings of fact, the trial court's distribution of the marital estate was not an abuse of discretion.

Finally, Husband argues that the trial court erred in awarding Wife alimony and attorney fees. 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. If these factors have been considered, we will not disturb the trial court's alimony award unless such a serious inequity has resulted as to manifest a clear abuse of discretion. Kelley v. Kelley, 2000 UT App 236,¶26, 9 P.3d 171 (citations and quotations omitted). As for attorney fees, the trial court must consider: (1) the financial need of the recipient spouse; (2) the ability of the other spouse to pay; and (3) the reasonableness of the fee. See Rehn v. Rehn, 1999 UT App 41,¶22, 974 P.2d 306. In this case, the trial court considered all of the required factors for both alimony and attorney fees. Further, the trial court heard lengthy and contradictory testimony regarding numerous exhibits concerning the factors for both alimony and attorney fees. Based on this evidence, the trial court made a credibility determination that we will not disturb on appeal. See Cooke, 2001 UT App 110 at ¶11. Therefore, the trial court did not abuse its discretion in awarding alimony and attorney fees because the trial court made all of the required findings with sufficient evidence to support them.

In sum, we affirm the trial court's allocation of the marital property and its award of alimony and attorney fees to Wife. We remand to the trial court to determine Wife's entitlement to attorney fees for the issues on which she has prevailed on appeal. See Marshall v. Marshall, 915 P.2d 508, 517 (Utah Ct. App. 1996).
 
 

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

WE CONCUR:
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge
 
 

______________________________
James Z. Davis, Judge