Holmstead v. Holmstead

Holmstead v. Holmstead

IN THE UTAH COURT OF APPEALS

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Sindy Holmstead,

Petitioner and Appellee,

v.

Tony D. Holmstead,

Respondent and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030248-CA
 

F I L E D
(May 6, 2004)
 

2004 UT App 147

 

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Sixth District, Richfield Department

The Honorable Paul D. Lyman

Attorneys: Howard Chuntz, Orem, for Appellant

Douglas L. Neeley, Manti, for Appellee

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Before Judges Bench, Greenwood, and Jackson.

GREENWOOD, Judge:

Tony Holmstead (Husband) appeals from the trial court's Decree of Divorce. We affirm in part and reverse and remand in part.

Husband first challenges the trial court's division of his and Sindy Holmstead's (Wife) marital property. "In dividing the marital estate, the trial court may make such orders concerning property distribution . . . as are equitable." Newmeyer v. Newmeyer, 745 P.2d 1276, 1277 (Utah 1987). "In making such orders, the trial court is permitted broad latitude . . . ." Id. 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). However, when a court is dividing marital property, "'[e]ach party is presumed to be entitled to . . . fifty percent of the marital property.'" Id. at ¶26 (first alteration in original) (citation omitted). Therefore, "[a]n unequal division of marital property . . . is only justified when the trial court 'memorializes in commendably detailed findings' the exceptional circumstances supporting the distribution." Id. at ¶27 (citation omitted).

In this case, the trial court emphasized that it did not make a "'mathematically incorrect' finding," as asserted by Husband, and that its "Findings and Decree . . . accurately reflect[ed] the [c]ourt's equitable division of the parties' assets and liabilities." Although the trial court never used the term "exceptional circumstances" to justify the unequal division of the marital property, the court stated that Husband "had the ability to earn many times what [Wife] earns," and that "by awarding the house to [Wife], the [c]ourt reduced [Wife's] need for alimony." Moreover, the trial court made it clear that it was awarding Wife her hair cutting business in its entirety because it was her only source of income.(1)

 

In Newmeyer, the Utah Supreme Court specifically noted that "the relative abilities of the spouses to support themselves after the divorce are pertinent to an equitable determination of the division of the fixed assets of the marriage." Newmeyer, 745 P.2d at 1279 n.1. Therefore, we conclude that the trial court's consideration of Husband's and Wife's earning capacities after the parties' divorce constituted an "exceptional circumstance[]," Bradford, 1999 UT App 373 at ¶27, justifying the unequal division of the parties' marital property. Accordingly, the trial court did not abuse its discretion by awarding Wife more of the marital property.

Husband next claims that the trial court abused its discretion by awarding alimony to Wife without properly determining his ability to pay. "'Trial courts have considerable discretion in determining alimony . . . and [determinations of alimony] will be upheld on appeal unless a clear and prejudicial abuse of discretion is demonstrated.'" Breinholt v. Breinholt, 905 P.2d 877, 879 (Utah Ct. App. 1995) (first alteration in original) (citation omitted). When determining an award of alimony, a trial court is required to consider several enumerated factors including "the ability of the payor spouse to provide support." Utah Code Ann. § 30-3-5(7)(a)(iii) (Supp. 2002). Therefore, the trial court abused its discretion, if as Husband contends, it failed to properly consider his ability to pay. See Marshall v. Marshall, 915 P.2d 508, 516 (Utah Ct. App. 1996) (noting that trial court abuses its discretion when it fails to consider enumerated factors).

In determining his ability to pay, Husband does not dispute that the trial court correctly calculated his income. Rather, he argues that the trial court understated his monthly expenses by discounting his testimony that his monthly 401(k) loan payment was $618, and allowing him instead only $120 to cover the payment. After reviewing the record, we conclude that there is no evidence to support the trial court's finding that "$120 per month . . . [was] a more reasonable payment." The only evidence, other than Husband's testimony, pertaining to Husband's loan repayment obligation is his retirement account statement, which reflects that Husband's scheduled repayment was $308.49 per month immediately prior to the parties' divorce. For reasons that are not clear from the record, this amount was rejected by the trial court. Without additional information, it is impossible to ascertain whether the trial court's determination of Husband's expenses and consequent award of alimony constituted an abuse of discretion. Therefore, we remand for the entry of further findings detailing how Husband's monthly loan payment obligation was determined or, if there is no evidence to support the trial court's decision to reduce the 401(k) monthly payment to $120, the trial court should adjust the payment to $308.49 and recalculate the alimony award.

Finally, Husband argues that the trial court abused its discretion in ordering him to pay $3500 of Wife's attorney fees (totaling $4500 at the time of the parties' divorce). Husband does not dispute that the trial court considered Wife's ability to pay her attorney fees. However, he maintains that the trial court failed to consider the reasonableness of Wife's attorney fees and his ability to pay.

A trial court may award attorney fees and costs in divorce proceedings. See Utah Code Ann. § 30-3-3 (Supp. 2002). "However, the trial court must base the award on evidence of the receiving spouse's financial need, the payor spouse's ability to pay, and the reasonableness of the requested fees." Shinkoskey v. Shinkoskey, 2001 UT App 44,¶18, 19 P.3d 1005 (quotations and citations omitted). Therefore, "an [attorney fee] award must be based on sufficient findings," and the failure to make such findings "ordinarily requires remand for more detailed findings by the trial court." Id. (quotations and citations omitted).

Here, despite Husband's assertion to the contrary, the trial court considered his ability to pay. Prior to awarding Wife her attorney fees, the court specifically noted that Husband had an income of $1100 per month. However, because we remand the issue of Husband's expenses and alimony obligation, we also remand for the trial court to determine Husband's ability to pay any of Wife's attorney fees incurred. In addition, there is no evidence that the trial court considered the reasonableness of Wife's attorney fees. Therefore, we also remand for the entry of findings detailing the reasonableness of Wife's attorney fees.

Wife seeks an award of attorney fees incurred on appeal. "Generally, when fees in a divorce case are awarded to the prevailing party at the trial court, and that party in turn prevails on appeal, then fees will also be awarded on appeal." Id. at ¶20 (quotations and citations omitted). In this case, the trial court ordered Husband to pay a portion of Wife's attorney fees. On appeal, Wife has substantially prevailed, but not entirely. We therefore remand to the trial court to determine what, if any, portion of Wife's fees incurred on appeal is appropriate for Husband to pay and the reasonableness of such fees.

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Pamela T. Greenwood, Judge

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WE CONCUR:

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Russell W. Bench,

Associate Presiding Judge

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Norman H. Jackson, Judge

1. The trial court also noted, based on Wife's testimony, that the entire balance in the business savings account was used to pay the business's expenses, thereby negating Husband's argument, unsupported by any evidence, that "there was nothing to offset against the value of the business assets."