Hall v. Hall

----ooOoo----

Kenneth M. Hall,
Petitioner and Appellant,

v.

Debora Hall,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20001104-CA

F I L E D
February 7, 2002 2002 UT App 26 -----

Fourth District, Provo Department
The Honorable Anthony W. Schofield

Attorneys:
Thomas R. Blonquist, Salt Lake City, for Appellant
Donald W. Winters, Pleasant Grove, for Appellee -----

Before Judges Billings, Davis, and Thorne.
BILLINGS, Associate Presiding Judge:

Kenneth M. Hall (Husband) appeals from an amended divorce decree. He maintains the trial court erred in refusing to award him an interest in forty acres of undeveloped land (the Land) Debora Hall (Wife) brought into the marriage.

A trial court is afforded "considerable latitude in adjusting financial and property interests" in divorce proceedings, "and its actions are entitled to a presumption of validity." Thomas v. Thomas, 1999 UT App 239,¶16, 987 P.2d 603 (quotations and citations omitted). Thus, "changes will be made in a trial court's property division determination . . . 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." Id. (quotations and citations omitted).

In the present case, Wife brought the Land, and a house on one acre of land (the House), together with twenty-five water shares, into the marriage.(1) The trial court concluded the House was marital property subject to equitable distribution. Thus, after deducting debts against the House, the court awarded Husband fifty percent of the equity in the House. However, the court refused to award Husband a share of the Land, adjacent to the House.

Husband first argues the finding that he was aware that the House served as sole consideration for the loan, used to clear a lien on the House and the Land (the Loan), is clearly erroneous. We disagree. Wife's trial testimony clearly supports this finding as does the fact that the Loan was secured only by a trust deed on the House. Moreover, the trial court's refusal to grant Husband an interest in the Land was based on findings, unchallenged by Husband, that about the time the parties obtained the Loan, Wife executed a quit claim deed granting Husband an interest in the House, and Wife consistently declined to convert the Land into a marital asset. Thus, ample evidence supports the trial court's finding that Husband was aware the Land did not serve as consideration for the Loan.

Husband next argues, because he used his Veterans' Administration entitlement to obtain the Loan, and the Loan proceeds were used to clear the lien on both the House and the Land, the Land became marital property and equity requires that he be awarded a share of the Land.

Although the Loan proceeds may have been used to clear the lien on both the House and the Land, the trial court did not exceed its discretion in refusing to award Husband an interest in the Land. Husband and Wife are both obligated on the Loan. The Loan proceeds were used to clear the lien and fund improvements on the House. The House appreciated in value to $111,000 during the parties' seven year marriage. In the property division, the trial court deducted the balance due on the Loan and the parties' other debts against the House, then awarded Husband half of the $43,000 equity remaining. Thus, the trial court gave Husband credit for the obligation he assumed and attempted to place "the parties to a second marriage of relatively short real duration back into sole ownership of the properties they brought into the marriage." Georgedes v. Georgedes, 627 P.2d 44, 45 (Utah 1981). Thus, we cannot say the trial court exceeded its discretion in refusing to award Husband an interest in the Land.

Finally, both parties seek attorney fees and costs on appeal. However, neither party was awarded fees and costs below. When the trial court declines to award attorney fees and costs, "we will not generally award them on appeal, except when [the prevailing] party [on appeal] has presented a well-supported claim of changed circumstances." Burt v. Burt, 799 P.2d 1166, 1171 (Utah Ct. App. 1990); see also Brockbank v. Brockbank, 2001 UT App 251,¶18, 32 P.3d 990. Such claim was not presented on appeal.

Accordingly, we affirm and deny both parties' requests for attorney fees and costs on appeal.
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge -----

WE CONCUR:
 
 

______________________________
James Z. Davis, Judge
 
 

______________________________
William A. Thorne, Jr., Judge

1. The marriage was Wife's second marriage. Wife was awarded the House and the Land, subject to the sellers' lien, in the divorce that ended her first marriage.