Dwyer v. Assenberg

Dwyer v. Assenberg

IN THE UTAH COURT OF APPEALS

----ooOoo----

Kevin Dwyer,
Appellant,

v.

Emily Assenberg,
Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20010634-CA
 

F I L E D
(March 20, 2003)
 

2003 UT App 80

 

-----

Seventh District, Moab Department

The Honorable Lyle R. Anderson

Attorneys: Kevin Dwyer, Moab, Appellant Pro Se

Kristine M. Rogers, Salt Lake City, for Appellee

-----

Before Judges Davis, Greenwood, and Thorne.

GREENWOOD, Judge:

Kevin Dwyer (Father) appeals the trial court's calculation of child support, award of the tax exemption benefit, and award of attorney fees to Emily Assenberg (Mother). Mother requests attorney fees and costs on appeal. We affirm and award Mother fees and costs on appeal.

Father first argues that the trial court erred in calculating his child support obligation. Specifically, he objects to the amount of income the court imputed to both parties, and to the court's refusal to give him credit for a child in the home. "A trial court's decision regarding child support will not be disturbed absent 'manifest injustice or inequity that indicates a clear abuse of . . . discretion.'" Jensen v. Bowcut, 892 P.2d 1053, 1055 (Utah Ct. App. 1995) (quoting Hansen v. Hansen, 736 P.2d 1055, 1056 (Utah Ct. App. 1987)).

Father argues that the trial court erred in imputing his income based on his most recent employment instead of the unemployment insurance payments he was receiving at the time of trial. Prior to imputing income the court must make a threshold finding that "the parent is voluntarily unemployed or underemployed." Utah Code Ann. § 78-45-7.5(7)(a) (2002); see Reinhart v. Reinhart, 963 P.2d 757, 758 (Utah Ct. App. 1998). Once the threshold finding is made, the court then determines the amount to impute according to section 78-45-7.5(7)(b).

The trial court found, and the record supports, that Father was voluntarily unemployed. Father was previously employed, has a bachelor's degree, and is thirty-six-years-old; all indicators of his ability to earn.

Section 78-45-7.5(7)(b) requires the trial court to base imputed income "upon employment potential and probable earnings as derived from work history, occupation qualifications, and prevailing earnings for persons of similar backgrounds in the community." Utah Code Ann. § 78-45-7.5(7)(b) (2002). The only income figures provided to the trial court were for Father's most recent employment, when his average monthly earnings were $2,800 per month. Given these factors, the trial court did not abuse its discretion in the imputation of Father's income.

Next, Father maintains that Mother's imputed income, at $960 per month, is too low. The trial court's decision is based on testimony that Mother is a student, caring for a child, and only able to work part-time. Based on these facts, the trial court's decision to impute her income at $960 was not an abuse of discretion.

Father also argues that he should be given credit toward his child support obligation for a child from a previous relationship. However, under Utah Code Ann. § 78-45-7.2(4)(a) (2002), "Natural . . . children of either parent who live in the home of that parent and are not children in common to both parties may at the option of either party be taken into account under the guidelines in setting . . . a child support award . . . ." Id. (emphasis added). This court has held, "This provision does not mandate that the trial court give credit for children living in the obligee's current home. Rather, the provision simply gives the trial court the ability to determine whether or not other children will be considered in determining the amount of support." Jensen v. Bowcut, 892 P.2d 1053, 1057 (Utah Ct. App. 1995).

The trial court did not abuse its discretion when it refused to give Father credit for a child in his home. There is no preexisting child support order, but only an alleged agreement between Father and the child's mother. Further, Father was moving to Salt Lake City, leaving the child in Moab with his mother.

Father also argues on appeal that the tax exemption benefit should be awarded to him because it is worth more to him than to Mother. The specific remedy Father requested during the trial was "the tax situation for 2000." For the year 2000, the trial court allowed Father to pay Mother the amount of benefits she received by claiming the minor child, so that he could claim the child as a dependent.(1)

However, on appeal, Father claims error in the court's decision to award Mother the right to claim the minor child as a dependent for the year 2001 onward. Father failed to preserve this issue for appeal. Generally, this court will not consider an issue raised for the first time on appeal. See State v. Marquez, 2002 UT App 127,¶7, 54 P.3d 637. In order to preserve an issue for appeal, a party must raise it "by proper motion or objection in the court below." Id. Father failed to object to the judge's award of the tax exemption to Mother after 2000, his brief fails to cite to any such objection in the record, and a review of the record does not reveal an objection. Accordingly, this court will not consider this issue further.

Lastly, Father argues that the trial court erred when it ordered him to pay $2,000 of Mother's attorney fees. "A trial court's decision to award attorney fees will not be overturned absent an abuse of discretion." Jensen, 892 P.2d at 1055. In awarding attorney fees, the trial court was aware of the parties' relative earning power, and found that Father's pro se filings had increased Mother's attorney fees.(2) Therefore, the award of one-half of Mother's attorney fees is not an abuse of discretion.

We also award Mother attorney fees and costs incurred on appeal. "The general rule is that when a party who received attorney fees below prevails on appeal, the party is also entitled to fees reasonably incurred on appeal." Utah Dep't of Soc. Servs. v. Adams, 806 P.2d 1193, 1197 (Utah Ct. App. 1991).

The decision of the trial court is affirmed. We remand to the trial court to determine Mother's costs and fees incurred on appeal.

______________________________

Pamela T. Greenwood, Judge

-----

WE CONCUR:

______________________________

James Z. Davis, Judge

______________________________

William A. Thorne Jr., Judge

1. Both parties claimed the child on their 2000 tax returns; one party must therefore amend. The trial court's ruling requires Mother to amend if Father pays her the benefit she received.

2. The court stated that if Father had consulted with a lawyer, it is likely that the legal fees would have been reduced by twenty-five to fifty percent.