*1 63(b) disquаli- beyond procedure the outlined Rule a motion to went affidavit as Rule 63(b). Accordingly, Judge we order Mur- incorporated by reference his decisions fy, cases, 9,1993 February of disqualify phy to in two other to vacate the order on motions and including Phillips, certifying & enter an the affida- State v. Blood and to order comment, vit, judge.2 motion. The order a ultimately denied the without to named “in Judge to Noel certified the matter law on of also The memorandum of the issue 63(b) pass to by with Rule ... per suggested Judge Murphy accordance se recusal legal sufficiency of upon the the affidavit.” Judge ger- requested by and Noel is not petition- Judge subsequently Noel directed disqualification the mane to issue of of “address- er to file a memorandum law 63(b). prejudice Rule bias or under lawsuit ing or not counsel’s whether Petitioner’s further contention Judge necessitates against assigned the Judge delayed Murphy improperly hаs that recusal,” a apparently as a result of se filed in the other action on affidavits Murphy’s February in Judge reference agree six identified cases. We that to on motion for 1993 order his decision a 63(b) set in Rule procedure out contem Peti- Phillips. Blood & recusal State v. expeditious delay plates action to minimize Judge Murphy failed tioner contends that adjudication disposition pending and of 63(b)by characterizing comply with Rule Therefore, Judge further cases. we order as if ruling on the affidavit it were Murphy immediately upon act the Rule motion, by making to his reference 63(b) remaining six affidavits filеd cases, im- in' other which risked decisions by making identified herein a deter cases Judge influencing properly review he questions mination whether or not agree. after certification. We Noel affidavits, and on legal sufficiency of the 63(b) options clearly Rule states the basis, recusing certi either himsеlf or to the judge response available to trial judge. fying the affidavits to named alleging preju- filing of an affidavit bias or affi- judge against dice. “If the whom the sufficiency questions is directed
davit affidavit, order he shall enter an
directing copy that a thereof be forthwith him) judge (naming
certified another jurisdic-
the same court of a court of like or tion, pass judge upon then which shall HOAGLAND, Joy A. Plaintiff sufficiency In the legal of the affidavit.” Appellant, alternative, if judge question does not affidavit, legal sufficiency of the a sub- try the judge stitute “must be called in to HOAGLAND, Colin G. Defendant question.” matter case or determine the Appellee. receipt provides upon The rule further 920340-CA. No. affidavit, against judge whom it proceed Appeals is directed “shall no further there- Court of Utah. in, except judge to call in hear another 7,May and determine the matter.” 63(b) import
The clear of Rule is that
judge against is direct- whom affidavit herself, him- or if
ed must either recuse or questions legal sufficiency
he she or affidavit, certify the matter to another judge ruling legal
named for a on its suffi- 9, 1993,
ciency. The Fеbruary order of 2. Both argument legal request supporting at oral conceded certified memo- 63(b) judge a Rule whom affidavit is randa.
David Bert Havas and Thomas A. Blake- ly, Ogden, plaintiff appellant. for Sylvia Kralik, Donn E. Cassity, O. Williams, City, Loris D. Lake Salt for de- appellee. fendant and BENCH, JACKSON, Before GARFF JJ.
GARFF, Judge: Appellant (Wife) Joy Hoagland A. peals a decree of divorce awarded against appellee Hoagland Colin G. (Husband). We affirm reverse in part, and remand.
FACTS We draw the facts from the court’s find- ings of facts. and Wife married September 5, At the time of the marriage, lived in a house that had been Wife awarded to from a marriage. years marriage, After three house, using proceeds Wife sold the Husband, purchase, with another house area, they approximate- where lived for ly years. ten Both Husband and Wife held title to the house.
At the time of the worked for Both Smiths. Husband and quit form jobs partnership their with family оperate other members grocery They store. ran the business until ' August partnership when the closed ten $8,280.00, unemployment plus Pri- bankruptcy. filed for weeks, gross income of business, giving her a Husband execut- closing the or to of Wife to per year. in favor quitclaim deed ed a from creditors. protect it Ogden The court concluded *3 developed seri- 1986, During parties asset, that it marital house was a marriage. In Janu- problems in their ous Wife The court awarded should be sold. in 1987, employment found ary Husband reimbursement, $19,672.00 without in- Nevada, working again Vegas, once Las terest, from the home she equity of the a house purсhased He then for Smiths. It then divid- prior marriage. owned to her Vegas. Las to move to invited Wife sale of the equally proceeds ed in refused, was stating that her home She The court concluded marital residence. Ogden. pay any have to that Husband should not Nevada, alimony moved to arrear- tеmporary time Husband At the interest on $300.00, a approximately $27,507.00, pay him he took with and that he could ages of encumbered, and a truck that was pickup ap-Wife over 45.845 months. the amount approximately had motorcycle. Wife peals. $10,000.00 a motor in cash and $9,000.00. for
home, later sold which she OF LIVING STANDARD furniturе, house, had all of the She also its discre- Lincoln the court abused lot, pool, a 1980 Wife claims swimming parties’ alimony upon of Car, basing None in and a 1976 Chevrolet. tion Town separation, rath- living prior to the vehicles was encumbered. standard of living at the the standard of er than on August filed for divorce Wife trial. time of Wife court ordered Husband The of alimony in the amount temporary determining of the time for The issue trial, time of per month. At the $1500.00 alimony was living in cases of standard $27,507.00 arrearages in owed in Howell thoroughly discussed amount, $21,- alimony. this temporary Of denied, (Utah App.), cert. 1209 in a judgment reduced to 935.00 had bеen (Utah 1991). forth the We set P.2d 327 prior to trial. hearing months held five that, should look general, in a court rule existing at or living trial, decision. standard of court issued its “to the After determining alimo in alimony of trial determining In the amount near the time However, Wife, be found as follows: at 1212. ny.” award Id. 806 P.2d and be is “fact-sensitive” cause thе issue accus- has not become That [Wife] relevant consider “all during court must living cause the high standard of tomed to we defer to principles,” equitable from the evi- facts and marriage, appearing it determining business sound discretion prior dence that the court’s [Husband’s] approxi- living. failing grossing he was parties’ standard was used mately per week which $500.00 found that Wife Here the court family parties income tax for needs. high to a accustomed has not become prior thereto indicate years for returns marriage, during the standard of considerably less. actual income from the evidenсe appearing that the standard of The court held failing in 1986 he [Husband’s] marriage enjoyed during the approximately $500.00 grossing was as of the time of would be determined family needs. used week which was trial; time of separation instead of the years returns for parties income tax asset; a marital each the house was actual income con prior thereto indicate attorney pay his or her own party was to siderably less. fees; inter- Husband did not owe and that arrearages. temporary alimony est on the move from did not want to Wife, to continue her home Utah found that as a seasоnal The court higher to benefit from the gross pay yet time she wanted part had a employee, obtained, as a acted within its discretion in con- Moreover, result of relocation. that the cluding proper- Husband’s house marital was marriage that the essen- ty, court found notwithstanding quit the Husband’s tially out of ended when moved claim deed.
Utah.
the court made relevant
Because
findings, supported
relevant evidence
ATTORNEY FEES
equitable principles,
we hold that it did
Wife claims the court abused its discre-
not
in de-
abuse its discretion
this case
denying
tion in
of attorney
an award
parting
basing
from the
rule and
fees.
alimony
living enjoyed
the standard
A
separation.
at the
trial court
use its sound
time of
We therefore
*4
attorney
to
alimony
affirm the court's
award.
discretion
award
fees in divorce
proceedings pursuant
to Utah Code Ann.
MARITAL PROPERTY
(1989).
Peterson,
30-3-3
Peterson v.
818
§
1305,
(Utah App.1991);
P.2d
1309
Bell v.
Wife claims the court abused its
Bell,
489,
(Utah App.1991).
P.2d
810
493
disregarding
quit claim
discretion in
the
discretion,
using
In
its sound
the trial court
proper
deed to
to
find the house
be marital
(1)
must take into account
factors:
three
ty.
receiving spouse;
the financial need of the
Supreme
Both this court and the Utah
(2)
ability
spouse
pay;
the
of the other
long
Court
held thаt
have
once a court has
(3) the
requested
and
of the
reasonableness
something
prop-
determined that
is marital
Bell,
493;
fees.
810 P.2d at
Rasband v.
erty,
equitably,
distribute it
Rasband,
1331,
(Utah
752 P.2d
1337
App.
party’s
notwithstanding which
name
1988).
Jackson,
pears on the title. Jackson v.
617
(Utah
338,
1980);
P.2d
Naranjo
340-41
v.
This court
Supreme
and the Utah
1144,
(Utah
Naranjo,
P.2d
751
1148-49
attorney
Court have reversed
fee awards
App.1988).
trial
empowered
“The
court is
party
where a
has failed
one of
to-show
the
just
make such
as
distributions
are
e.g.,
factors. See
Newmeyer Newmeyer,
v.
equitable,
may compel
conveyanc-
such
1276,1280
1987);
(Utah
745 P.2d
Haumont
necessary
Jackson,
es as are
to that end.”
Haumont,
421,
(Utah
v.
793
426
App.
P.2d
Likewise, the per this instance found year, equal which is almost to the conveyed Ogden house to income which the were protect failing it from creditors of the busi- drawing when was $500.00 [Husband] ness. The court also reimbursed Wife week from his to the the amount she contributed to the house parties, represents represented equity pre- monthly from her greater amount than the marital property. findings, Given those set amounts out the Affidavit of interest can
monthly expenses as filed
which
accrue. He also
[Wife].
Therefore,
argues
judge’s signed
order was
[Wife]
[Husband]
judge signed
attorneys
defective because the
it within
each
their own
fees and
objection period
ten-day
and not after
costs.
days
elapsed.
the ten
had
that Wife had re-
The court also found
the motor
through
ceived funds
the sale of
Code of
Utah
Judicial Administration
hоme,
dispositive
arguments.
her when
left
party
cash left to
both
A
state,
days
money
received from the sale of has ten
after the issuance of a com-
house,
missioner’s
and the other assets.
recommendation to file an ob-
jection.
R6-401(4).
Utah Code Jud.Admin.
adequate
Because the court made
find-
However,
exception
pretrial
with the
ings based on substantial evidence that the
orders, “the commissioner’s recommenda-
financial circumstances
Husband and
tion is the order of the court until modified
essentially equal, the court act-
Wife were
Thus,
by the court.” Id.
the fact that the
refusing
ed
within its discretion
award
judge may
signed
have
the recommenda-
attorney fees.
ten-day objection period
tion
within
order,
nullify
does not
nor
does
close
INTEREST ON ALIMONY
objection period.
words,
off the
In other
ARREARAGES
*5
the court’s order on the order to show
Finally, Wife claims the trial court
judgment
cause constituted a
from which
denying
statutory
in
on
erred
interest
Thus,
statutory interest accrues.
temporary alimony arrearages.
awarding
erred in not
Wife interest on the
Whitehead,
v.
couple’sjoint standard ANESTHESIOLOGISTS ASSOCIATES has not lived to- of trial OGDEN, when OF A Utah Professional Cor An increase in gether many years? Plaintiff, poration, Appellant, separation should be сonsid- during income Cross-Appellee, party’s ability determining ered absolutely impact no alimony, but it has HOSPITAL, ST. BENEDICT’S Utah living. couple’s actual standard of non-profit corporation, Bene and St. living enjoyed by joint standard System, non-profit dict’s Health a Utah “during” marriage their Hoaglands Defendants, corporatiоn, Appellees, upon separa- their necessarily terminated Cross-Appellants. “De- expressly found: tion. The trial No. 910368-CA. position in the business world fendant’s after his was arrived at Appeals Court of of Utah. plaintiff.” increase in income can- His 7,May logically not said to have affected the be they actually enjoyed during marriage standard of liv- their —the correctly found ing to which the trial court
she had become accustomed. ruling in this case
The trial court’s affirmed, not because trial be depart from the rule
court has discretion to the trial
provided in but because *6 rule, correctly general followed the at the standard of
which is to look
actually enjoyed. specially.
I therefore concur
JACKSON, (concurring specially): Judge
By language, opinion the court’s its own Howell v.
(Utah App.1991), limits its determination should deter-
that the be specific trial to the
mined as of the time of I Accordingly,
facts of case. do not
agree that Howell establishes living must
rule that the standard of be Rather, trial.
determined as of the time of
the trial court has discretion to determine
whether the standard be
determined as of or as of the
time of trial.