Jones v. Jones

Jones v. Jones

IN THE UTAH COURT OF APPEALS
 

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Lynda F. Jones,

Petitioner and Appellee,

v.

Alan D. Jones,

Respondent and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040192-CA
 

F I L E D
(June 23, 2005)
 

2005 UT App 287

 

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Third District, Salt Lake Department, 914900581

The Honorable Leslie A. Lewis

Attorneys: Stephen G. Homer, West Jordan, for Appellant

Amy E. Hayes, Salt Lake City, for Appellee

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Before Judges Bench, Davis, and Jackson.

DAVIS, Judge:

    Alan D. Jones (Respondent) appeals the trial court's order modifying his alimony obligation, under a decree of divorce, to Lynda F. Jones (Petitioner). Respondent argues that the trial court abused its discretion by modifying the amount of alimony awarded to Petitioner from $1400 per month to $500 per month because the payment of $500 per month greatly exceeds Petitioner's needs and Respondent's ability to pay. Respondent further argues that the trial court erred in making the alimony modification prospective from September 1, 2003, rather than retroactive to 2001, when Respondent served Petitioner with his petition for modification. We reject Respondent's contentions regarding his ability to pay and his arguments regarding the prospective application of the alimony modification, but hold that the trial court abused its discretion in setting the amount of the modification at $500 per month. Thus, we modify the trial court's order, as further explained below, and affirm the order as modified.

    "In a divorce proceeding, the trial court may make such orders concerning property distribution and alimony as are equitable. The trial court has broad latitude in such matters, and orders distributing property and setting alimony will not be lightly disturbed." Jones v. Jones, 700 P.2d 1072, 1074 (Utah 1985) (citation omitted). "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." Rehn v. Rehn, 1999 UT App 41,¶6, 974 P.2d 306; see also Utah Code Ann. § 30-3-5(8)(a)(i)-(vii) (Supp. 2004).(1) "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 (quotations and citation omitted).

    Respondent asserts that the trial court incorrectly examined his historical earnings to determine his ability to pay. The court's decision to impute to Respondent his historical earnings in determining his ability to pay alimony was predicated on its finding that Respondent was voluntarily underemployed. See Hill v. Hill, 869 P.2d 963, 964-65 (Utah Ct. App. 1994) (stating that court may impute gross income in determining ability to pay child support payments "if it has first examined a parent's historical and current earnings to determine that underemployment or overemployment exists"); see also Griffith v. Griffith, 1999 UT 78,¶19, 985 P.2d 255 ("[T]rial courts have broad discretion in selecting an appropriate method of assessing a spouse's income and will not be overturned absent an abuse of discretion."). Respondent, however, argues that the trial court's finding of voluntary underemployment is erroneous.

    The court considered the following in determining that Respondent was voluntarily underemployed: Respondent's testimony that he voluntarily left his former place of employment (Lawson) and moved to Montana understanding that he would likely earn less money, Respondent's testimony that changes to the management scheme at Lawson would have significantly reduced his income had he continued working there, and Respondent's failure to present any verification that the restructuring at Lawson would have dramatically reduced his income. At trial, the court repeatedly allowed Respondent the opportunity to present evidence of his claim that his income at Lawson would have been substantially reduced; however, Respondent chose instead to rely solely on his own conclusory testimony to that effect. Moreover, Respondent's counsel informed the trial court that when Respondent moved to Montana, "[m]aybe he intended to just earn less." In determining whether Respondent was voluntarily underemployed, the trial court was free to weigh Respondent's testimony against the other evidence before it. Therefore, we cannot conclude that the trial court's finding was erroneous. Having found that Respondent was voluntarily underemployed, the trial court did not abuse its discretion by using Respondent's prior earnings to determine his ability to pay alimony to Petitioner.

    Although we further determine that the trial court did not abuse its discretion in modifying Respondent's alimony obligation, we conclude that the award of $500 per month to Petitioner is not adequately supported by the trial court's review of Petitioner's earning capacity and her "reasonable financial needs." The court found that Petitioner's attested unmet financial need of $300 per month was understated because the court concluded that Petitioner had failed to account for the reasonable amount of expenses associated with clothing and dry cleaning. Petitioner, however, did not provide any evidence of her dry cleaning expenses. Moreover, Petitioner testified that she purchased clothing with her credit cards, and her credit card charges were already included in her declaration of expenses, which Petitioner used to determine her unmet financial need of $300 per month. Therefore, under our discretionary power to modify the court's award of alimony, see Olson v. Olson, 704 P.2d 564, 567 (Utah 1985), we hereby modify the award in this case to provide Petitioner with $300 per month in alimony.

    In addressing Respondent's claim that the trial court erred in making the modification prospective rather than retroactive, both parties argue that Utah Code section 78-45-9.3 governs. See Utah Code Ann. § 78-45-9.3(4) (Supp. 2004). The parties, however, disagree as to its interpretation. We determine that section 78-45-9.3 does not apply to the present dispute.

    Section 78-45-9.3 applies to support payments made under a child support order. See id. This court has applied section 78-45-9.3 to the modification of an alimony award when the recipient spouse was receiving child support at the time the petition for modification was filed. See, e.g., Wilde v. Wilde, 2001 UT App 318,¶19 n.2, 35 P.3d 341 (concluding that prior version of section 78-45-9.3 applied "to Appellant's alimony modification because Appellant was receiving child support when she filed her modification petition and thus sought to modify a 'spousal support payment under a child support order'"). Petitioner, however, was not receiving child support payments at the time Respondent filed for modification of the alimony award. As a result, section 78-45-9.3 has no application to this matter and the trial court had discretion to make the modification prospective. See Wilde, 2001 UT App 318 at ¶23 (stating that Utah common law grants trial courts the discretion to award alimony retroactively to the date a modification petition is served). We conclude that the trial court did not abuse its discretion in making the alimony modification prospective rather than retroactive.

    Affirmed, as modified.

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James Z. Davis, Judge

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WE CONCUR:

______________________________

Russell W. Bench,

Associate Presiding Judge

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Norman H. Jackson, Judge

1. We cite to the most current version of the Utah Code for convenience, as it has not been amended in the relevant time period.