Lovato v. Lovato

----ooOoo----

Edward F. Lovato,
Petitioner and Appellant,

v.

Petra Lovato,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000337-CA

F I L E D
May 16, 2002 2002 UT App 162 -----

Third District, Salt Lake Department
The Honorable Ronald E. Nehring

Attorneys:
Ronald C. Barker and Thomas E. Stamos, Salt Lake City, for Appellant
Monica Z. Kelley, Salt Lake City, for Appellee -----

Before Judges Jackson, Davis, and Greenwood.

GREENWOOD, Judge:

Appellant Edward Lovato (Husband) claims the trial court's award of alimony to Appellee Petra Lovato (Wife) was improper. 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). Husband argues that the trial court failed to adequately address the earning capacity of Wife and Husband's ability to provide support. Husband also argues that even if the findings were adequate, the trial court's decision results in a serious inequity that constitutes an abuse of discretion. We disagree.

First, the trial court adequately considered Wife's earning capacity when it made extensive findings about the historical earnings of the parties and the percentage of the total household income each spouse contributed to the marriage. Additionally, the trial court made extensive findings about Wife's immediate employability.

Second, the trial court made sufficient findings of fact on Husband's ability to pay alimony. During the course of the proceedings, the trial court heard conflicting testimony as to earnings, withholdings, and each party's monthly expenses. Based on the evidence received, the trial court made a credibility determination and entered findings of fact reflecting that determination. We will not second guess the trial court's assessment of credibility if there are sufficient findings to support its determination. See Cooke v. Cooke, 2001 UT App 110,¶11, 22 P.3d 1249. Moreover, we decline Husband's invitation to conduct the trial anew and to revise the trial court's mathematical calculations. See Moon v. Moon, 1999 UT App 12,¶24, 973 P.2d 431 (refusing to consider appellant's attempt to reargue the evidence on appeal).

Third, Husband argues that the trial court's order that he reduce his expenses and supplement his income with extra work so that he can pay alimony is a serious inequity constituting an abuse of discretion. However, this court has held that requiring parties to reduce expenses does not constitute a serious inequity. See Rehn v. Rehn, 1999 UT App 41,¶10, 974 P.2d 306 (accepting the trial court's alimony determination that stated "the parties are simply going to have to tighten up their belts and make do with less"). Further, [t]his court has previously held that when determining an alimony award, "it is appropriate and necessary for a trial court to consider all sources of income that were used by the parties during their marriage to meet their self-defined needs, from whatever source--overtime, second job, self-employment, etc., as well as unearned income." Breinholt v. Breinholt, 905 P.2d 877, 880 (Utah Ct. App. 1995) (quoting Crompton v. Crompton, 888 P.2d 686, 690 (Utah Ct. App. 1994)). In the present case, the trial court based its findings on historical data indicating Husband had worked a second job. Therefore, the trial court did not abuse its discretion on the issue of alimony because it made adequate findings on all required factors and those findings did not result in an inequity.

Husband next argues that the trial court incorrectly ordered that Husband's alimony payments offset Wife's child support obligation because alimony and child support lack mutuality of obligation. However, Husband ignores the fact that child support arrearages are sought by the recipient spouse in his or her own name, albeit for the benefit of the child. See Coulon v. Coulon, 915 P.2d 1069, 1072 (Utah Ct. App. 1996). Additionally, the facts of this case support the trial court's decision because Husband had not paid any temporary alimony despite being ordered to do so. This offset is a means of ensuring that Wife receives the alimony to which she is entitled. Therefore, the trial court did not err or abuse its discretion in ordering that alimony offset child support.

Husband also appeals the trial court's award of attorney fees to Wife. We review a trial court's decision to award attorney fees in a divorce action for an abuse of discretion. See Kelley, 2000 UT App 236 at ¶30. Although the trial court has broad discretion in determining whether to award attorney fees, it must enter findings regarding: (1) the financial need of the recipient spouse; (2) the ability of the other spouse to pay; and (3) the reasonableness of the fees. See Rehn, 1999 UT App 41 at ¶22. In addition to these three mandatory findings, The [trial] court may also consider the "difficulty of the litigation, the efficiency of the attorneys, the reasonableness of the number of hours spent on the case, the fee customarily charged in the locality, the amount involved in the case and the result attained, and the experience and expertise of the attorneys involved." Id. (citation omitted).

As noted in our discussion of the alimony award, the trial court made extensive findings as to Wife's needs and the ability of Husband to pay. Additionally, the trial court found the following:

It has been necessary for [Wife] to secure the services of an attorney to represent her in this action which has been made unnecessarily lengthy and time consuming because of [Husband], and his unwillingness to make reasonable efforts toward settlement. [Husband] is in the better financial position to pay [Wife's] attorney's fees and he should be required to pay [Wife's] attorney's fees and costs of at least $8,995.

Therefore, we find that the trial court did not abuse its discretion in awarding attorney fees to Wife.(1)

Additionally, Husband appeals the trial court's award of one-half of the fire insurance proceeds that were disbursed to repair fire damage to the marital home. "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). We defer to the trial court's determination that the fire insurance policy was part of the marital estate because it was intended to benefit a marital asset. Therefore, the trial court did not abuse its discretion by awarding Wife one-half of the repair proceeds Husband used for his own needs--not for repairing the marital home.(2) See id. at ¶26.

Finally, Husband argues that the trial court erred in awarding Wife interest on her lien on the marital home. Husband cites Osguthorpe v. Osguthorpe, 804 P.2d 530 (Utah Ct. App. 1990) (per curiam), for the proposition that an equitable lien cannot bear interest. Osguthorpe states that "an equitable lien, unlike a judgment, only gives the lienholder a right to collect the debt out of the charged property." Id. at 536. Payment of the lien in Osguthorpe was subject to basically the same contingencies as in this case. The court held that interest could not accrue until the equitable lien was reduced to judgment after the happening of one of those contingencies. See id. Osguthorpe is controlling authority and thus the trial court erred in awarding interest on Wife's lien.

In sum, the trial court did not abuse its discretion on the issues Husband raised, except as to the award of interest on Wife's equitable lien. Accordingly, we affirm in all respects, except we remand for modification of the decree regarding the interest accrual. Because Wife substantially prevailed on appeal, we award Wife attorney fees on appeal except for the attorney time expended on the interest accrual issue and remand this case to the trial court to determine reasonable fees incurred on appeal. See Marshall v. Marshall, 915 P.2d 508, 517 (Utah Ct. App. 1996).
 
 

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

WE CONCUR:
 
 

______________________________
Norman H. Jackson,
Presiding Judge
 
 

______________________________
James Z. Davis, Judge

1. Husband does not contest the reasonableness of the fee award.

2. Husband contends that the trial court's decision misapplied the collateral source doctrine as a matter of law. See Dubois v. Nye, 584 P.2d 823, 825 (Utah 1978). We find this doctrine irrelevant because Wife was not responsible for any fire damage to the house.