*1 HOWELL, Plaintiff James Walter Appellee, HOWELL, Joyce
Barbara Appellant.
No. 890596-CA. Appeals Utah.
Feb. *2 employed to be as
ried. He continued a Western, later over pilot with taken Airlines, throughout parties' mar- Delta children, The had riage. parties five four emancipated time whom were of The had parties trial. marital difficulties years and off on for number of and time, separated in At that November 1986. gross plaintiff's $5500 income was between month, per and been at that $5600 and had years. prior for five Western level pri- experienced problems Airlines financial Airlines. As or to takeover Delta Western negotiations result of between pilots, virtually plaintiff and its received no 1986, despite pay raises 1981 and between living. increases the cost of Both family ties that their testified finances period. that time were strained Plaintiff for in November filed divorce trial, 1987. At the time of December gross monthly income increased his had $10,120. declaration in- Plaintiff’s financial $7960, monthly expenses dicated (ar- sup- child $2400 included for and E. Liapis, H. Helen Paul Christian vacations, port, for Gustin, Green, $372 for and attor- Luhn, Stegall $633 gued), Kim M. ney fees. Liapis, City, for and Salt Lake defendant & appellant. During parties’ marriage, defendant only was a and homemaker had worked (argued), Michael S.
David S. Dolowitz time At part jobs. at unskilled labor Cohne, Evans, Rappaport Douglas, M. Joy per time of trial defendant earned $649.80 P.C., Segal, City, Lake for & Salt month, though job that temporary was appellee. and and terminated December 1988. She BENCH, GARFF and monthly Before testified at trial that she had ex GREENWOOD, totaling JJ. penses $5021.1 parties owned in Utah homes and
OPINION California, property well as real in Tex- Plaintiff as. testified the Utah home GREENWOOD, Judge: little, any, equity, while the Califor- Defendant, Howell, Joyce ap- Barbara yield equity. nia home would substantial award of peals from a divorce decree’s properties Plaintiff to sell all the wanted equity in a Califor- division proceeds. and divide net Defendant property affirm the division nia home. We prefer testified she would to live alimony. reverse and remand home. California trial, After the court entered FACTS fact, law, a decree of conclusions James plaintiff, findings, Defendant and Walter on 1989. In May divorce its Howell, on 1956. were married October the court states its belief that “the income began working as a for West- level pilot $5500 Plaintiff level reflects income parties during shortly Airlines after the mar- standards of ern real declaration of ed no ance, taxes insur- filed earlier $4464.62, monthly expenses totaling indicating that were then unknown. but includ- together.” lives court had years last five of their considered capa- defendant The court found that was trial at the time of rather than month, earning $625 ble when the separated, approximately $10,000 per plaintiff had income of month. years Additionally, two earlier. *3 further state that court “[t]he higher claims have been setting alimony has determined in parties’ because of the in the disparity in- $5,500.00 represents per while month come, length marriage, par- of the and the parties in the last standards of the 5 respective earning ties’ abilities and ex- years when the of the penses. We the applicable consider first together, ability of the plaintiff resided living question. standard of upon pay alimony present is his based $10,000.00 per income of month.” Defen- property The value of marital is de per month dant was awarded alimo- $1800 termined of of the time the divorce ny support child month for $1363 Fletcher, decree or trial. v. 615 Fletcher child, year-old then sixteen 1218, (Utah 1980). P.2d 1222-23 See also guidelines based on the child then 695, (Utah Berger Berger, v. P.2d 697 713 in effect. The court ordered that all of the 1985). The reason for the rule is that “[b]y including property, real the California very division, property nature of a home, proceeds be sold net and the divided according marital estate is evaluated equally parties. between the property what exists at the time the mar (1) appeal, On asserts riage is Jesperson Jesper terminated.” v. living, purposes ties’ for standard of son, 326, (Utah 1980). 610 P.2d 328 Courts determining alimony, should be based on can, however, eq in the exercise of their trial; (2) that at the time of powers, date, uitable use a different such insufficient; (3) awarded is the trial as the date if separation, party one has into should have taken consideration obstructively, Peck, “acted ...” Peck v. selling the tax consequences the Califor- 1050, (Utah Ct.App.1987). 738 P.2d 1052 nia home. elsewhere, No cases in Utah or that we OF STANDARD REVIEW discovered, specifical or counsel have ly Trial question courts have considerable discretion addressed the when a cou in determining alimony distri ple’s living” “standard of should be deter cases, in upheld bution divorce will be purpose calculating mined for the alimo appeal prejudicial on clear and unless a ny, separation be it or or trial some other abuse of discretion is demonstrated. Ras speak time. of the Most Rasband, 1331, band v. 752 P.2d 1333 living during marriage. Savage See (Utah Findings Ct.App.1988). of fact in (Utah 1201, 1983). Savage, 658 P.2d 1205 subject appeals clearly divorce to the are living” “Standard of is defined as “a mini erroneous review such that comforts, necessities, mum of or luxuries regard given “due opportu shall be to the maintaining person that is essential to nity judge of the trial court the credibili customary proper or circum status ty 52(a); of the Utah witnesses.” R.Civ.P. stances.” Webster’s Third New Interna 1249, Jense, (Utah Jense v. 1251 784 (1986). tional “An alimo Dictionary 2223 Ct.App.1989). law, Conclusions how ny should, possible, award extent to the ever, giv are reviewed for correctness and equalize post-divorce special appeal. en no on deference Bounti standards_” Rasband v. Ras (Utah Riley, 784 P.2d 1175 ful band, (Utah Ct.App. 752 P.2d 1333 1989); Smith, Smith v. 793 P.2d 1980). (Utah Ct.App.1990). case, separated In this
ALIMONY approximately year before one later, year one filed for divorce. Defendant claims that the About higher separation award would that a have been the trial was held. We note trial rigid rule which must be followed all action trial a divorce years before two cases, During acknowledge that two- that trial unusual. domestic certainly doubled be- plaintiffs income year period, discretion to determine the courts have takeover of West- successful cause of the existed Airlines. Plaintiffs Airlines Delta ern marriage after consideration of all relevant change advantage of ability to take equitable principles. In this facts and having part a result of at least in was of discre inequitable it was and an abuse times, as did his during the lean persevered pinpoint tion to as of impact of the sala- children. The wife and parties’ separation. time of the parties’ standard of liv- ry increase on the however, certainly affected ing, was argu to defendant’s We now turn *4 separate to maintain that it was used fact properly court did not consid ment that the living arrangements. factors, in resulting er all relevant an un justifiably alimony low award. Trial courts it with
We believe
is consistent
following
in
consider the
factors
set
parties’ post must
goal
equalizing
the
the
(1)
the
and
ting alimony:
to look to
standard
the financial condition
divorce status
in
existing
(2)
near the time of trial
living
recipi
at or
recipient spouse;
needs of the
the
determining alimony. This is consonant
income;
(3)
ability
produce
and
the
ent’s
to
marital
the treatment of both
with
payor spouse
provide sup
of the
designed to
support and is better
and child
Davis,
647, 649
port. Davis v.
749 P.2d
go forward with their
equip both
1988).
(Utah
Utah cases have stated that
relatively equal
separate lives with
odds.
purpose
alimony
prevent
the
is to
the
any future
justified
It is further
because
receiving spouse
becoming
public
“from
alimony
limited to instances
changes in
are
charge” and to maintain the standard of
change
material
of circumstances
where a
living enjoyed during
marriage,
the
to the
Bridenbaugh
occurred.
v. Briden
has
Fletcher,
possible.
extent
1213 deducting alimony, after child must make find The trial court gross monthly to do has income of When $6837. material issues. Failure ings on all error, ceases, perti support obligation approxi- unless his child reversible so constitutes “clear, decree, uncon- mately in the record are fifteen months after the he nent facts troverted, capable supporting only monthly gross income of $8200 will finding judgment.” in favor of the Ander comparison to defendant’s Defen- $2445.2 (Utah Andersen, 478 profile sen dant fits the described in Jones Ct.App.1988). approximately fifty other cases: she is old, years job has minimal marketable appellate courts have considered Utah’s skills, spent thirty plus and has most of the long after a appropriateness years parties’ marriage raising (usually) the wife term where caring for their five children and their home, lim primarily has worked has home, presumably with the concurrence skills, in her late forties or job ited and is plaintiff. achieving sig- Her likelihood of Rasband, Gardner, 1076; 748 P.2d fifties. salary nificant levels the future is slim. Jones, 1831, 1333. In 752 P.2d Jones set the court does not come (Utah 1985), supreme P.2d 1072 equalizing close to inadequate alimony awarded to allow found divorce, living as of the time of the *5 ap even the wife a standard a two to allows four times advan- mar proaching experienced during that We, therefore, tage.3 hold that the alimo- marriage as fol riage, and described ny by clearly amount set court was lows: erroneous. marriage, with the During most of the husband, support of her
full consent and We reverse and remand to the trial court raising devoted her time to wife] [the alimony, on the issue of as to donating and her ser- their four children needs, parties’ defendant’s financial organiza- vices to various social service trial, at the time of the _ entirely unrealistic to as- tions It is adjustment and for of the amount of alimo- that a woman in her mid-50’s with sume ny equalize parties’ to better abilities to experience train- no substantial work or go forward with their lives. ing job to enter the market will be able anything in re- support herself even TAX CONSIDERATIONS sembling style couple in urges Defendant also living. had been failing court erred to consider the tax at 1075. Id. consequences selling the California produced expert an wit home.
In case the court made this possible at trial who testified as to the ness plaintiffs defen findings as to both not, however, tax ramifications of the sale. He discussed gross dant's incomes. It did tax, gains capital but said the amount required finding as to defen make the needs, depend price, the sales and that it although would on dant’s financial regula might pursuant be avoided to tax monthly expenses approxi testified $5,000. might taxes mately support pursuant set tions. He testified Child deferred, over,” $1363, support guidelines plus at or “rolled but could not to child $1800, any certainty would plus poten say defendant’s with how IRS There is no abuse of discretion salary tial as determined the court of rule. $645, speculate hypotheti gross monthly income of court refuses to about yields total Plaintiff, consequences property tax of a and her son. cal future for defendant $3808 equality support per- of income is not in lieu of 3. Exact mathematical 2. "If courts award child alimony, may anticipate parity required, manent fail to but sufficient to allow both remaining family impact financial on the financially equal footing as of the ties to be on age child reaches 18 and his or her award each terminates.” March 1990 Utah Task Force on required. time of the divorce Report to the Utah Judicial Gender Council 38. Justice payments. Determin- Alex- as are child to a divorce. pursuant made
division ing Alexander, 737 P.2d ander fact-sensitive, subjective task marriage is a in this case (Utah 1987). consequences Tax court to look at the requires a trial they could that to whether speculative as circum- financial totality of to amount. delayed, and as be avoided marriage. The during the Utah stances testimony and evidence heard The court established has therefore Supreme did implications, but possible tax regarding that must be considered objective factors adjust property distri- refusing in not err when it determines by the trial court theoretical conse- of those because bution alimony. award of quences. function of important
“The most ny tribution ings We award consistent affirm the trial order and remand CONCLUSION but reverse with this court’s for further opinion. as to the alimo- proceed- dis- public nearly is to prevent [409] provide support for the wife as she charge.” enjoyed during at 411. possible the wife from English v. [(Utah 1977) English, 565 becoming a ] With mind, purpose Eng- in the Court in this GARFF, J., concurs. articulated three factors that must lish fixing a reasonable ali- be considered BENCH, (concurring part, Judge mony award: dissenting part): ment agree that this case entry of needs ability I agree of defendant for of the “tax considerations.” with the appropriate plaintiff majority to must be remanded for pay alimony. alimony and the opinion’s treat- as to I also I the re- support. [3] [1] sufficient income for [2] wife; the the financial ability of the husband to of the wife to condition and needs of *6 herself; and produce a provide disagree majority, with the how- spectfully Jones, (Utah P.2d 1075 v. 700 Jones ever, of parties’ how the 1985). as to Paffel, 732 P.2d Accord Paffel marriage impacts the ali- living during 1986) the (Utah (failure 100-01 to consider rules, as mony computations. majority The discretion); these factors is an abuse of law, computing the (Utah a matter of Olson, 704 P.2d 566-67 Olson award, have the trial court should 1985) (an appellate will not a disturb living standard of hypothetical considered a ruling if these factors are ade- trial court’s living together parties addressed). as if the quately than their actual stan- time of trial rather apparent foregoing quota- As is from the living enjoyed prior separation.1 to dard of tion, receiving spouse’s previous stan- the living independent the is not an factor addressing when dard of There are no cases quantified incorporated into a living is determined to be parties’ standard or Rather, cannot, calculating alimony. for it living” of formula because a “standard determining the quantified by the is a frame of reference for majority implies, be the reasonableness of the award. See trial court. It is not like marital Jr., Clark, 2 H. The Law Of objective generally, valuation at a capable which is of In capable being it Domestic Relations The United States given time. Nor is 1987). 17.5(8)(2d In figures present ed. on set of income calculated based § assertion, living, may majority’s not be Contrary the trial establishes a standard of it to the "pinpoint" pinpointing standard of court did not living that it made the mistake of said separation. The trial as of the time of living. majority errs standard of The therefore average a took the income over court five-year period prior finding that the trial court abused its discre- separation to and as- trial court did not even make the tion when the average income was their sumed that their "standard trial court erred in accusing majority is it of mak- mistake that living.” While it is clear that the ing. assuming that income alone
1215
are not concerned with the risk of de-
failed to determine
we
defendant’s financial
becoming public charge given
a
fendant
expenses
condition and needs based on the
apparent
to cover defen-
necessary
she claimed to be
to maintain the
question
dant’s basic needs. The
is how
living
enjoyed during
she
much additional
above defendant’s
See,
Olson,
marriage.
e.g.,
at
granted.
basic needs should be
(“to
living enjoyed
maintain the standard of
living prior
separation
ties’ standard of
to
during
living expenses
helps to establish what would be reason-
the wife and minor children would be
by showing
lifestyle
able
which
$4,200
month”).
grown
have
accustomed.
presented
to the trial court
plain-
Defendant seeks to
from
benefit
expenses
evidence of the
which she claimed
by mistakenly,
tiff’s raise
and unnecessar-
necessary
would be
to maintain her stan-
ily, claiming that the raise entitled her to
living,
dard of
but the trial court made no
upon
hypothetical
based
a
stan-
findings thereon.3 The trial court should
living
dard of
plain-
be calculated from
have
expenses
reviewed the
claimed and
$120,000,
salary
tiff’s new annual
determined
expenses
could be
income
grown
to which she has never
ac-
deemed reasonable in light
the stan-
words,
customed.2 In other
living
enjoyed prior
dard
she had
claims that her relevant standard of
separation. See,
Jones,
e.g.,
700 P.2d
is the unknown standard of
that she
(the couple
at 1075
enjoyed
“very
a
might
enjoyed
have
were the
lifestyle,”
comfortable
alimony award of
terminating
marriage.
any
their
Since
at-
$1,000 per month was insufficient for wife
tempt to determine a
to “maintain anything
approaching
even
separated parties
they
two
as if
were not
enjoyed
she
separated
purely speculative,
would be
marriage”).
Her reasonable
majority’s ruling
judicially
unworkable.
should have then been offset
her own
way
knowing
There is no rational
how
resources, i.e., any investment income and
parties might
have utilized the in-
her
wage-earning capacity.
own
Only then
they
togeth-
creased income had
remained
could the trial court have made finding
car,
bought
er. Would
a new
to defendant’s needs.
house, maybe
new
a vacation timeshare?
*7
they
simply
Or would
have
saved the mon-
The trial
gone
court should have then
ey
couple’s
for retirement?
a
Since
stan-
through
analysis
the same
plain-
as to the
living
large part
dard of
is determined in
tiff’s needs and resources in order to deter-
resources,
they spend
how
their
a trial
ability
pay. Again,
mine his
to
the reason-
nothing
speculate
court could do
about
expenses
ableness of his claimed
should be
possible
the
living
if the mari-
parties’ prior
reviewed with the
relationship
beyond
tal
sepa-
had continued
living in
mind.
trial court should have
ration.
then
plaintiff’s
determined whether
re-
only
approach
Not
is
sources exceeded
such an
unwork-
his reasonable needs. At
able,
have,
it
ap-
point
is not needed if the
this
the trial court
traditional
proach
did,
outlined in
English
impact
is followed. In
fact
consider the
of the dra-
present
clearly
the trial court
plaintiff’s
matic increase in
If
income.
claims,
majority
plaintiffs
and the
seems to
Western that
income would increase
2.
agree,
larger
that defendant
is entitled to a
stayed
if and because he
with the airline.
"persevered
amount of
because she
during
argument
the lean times." Such an
does
expenses
3. Defendant's actual
at the time of trial
not, however, justify an amount in excess of the
likely greatly
were
diminished due to her limit-
receiving spouse.
needs substantiated
correctly
ed
at
income
the time. She therefore
English,
majority’s
raise re- directly be benefitted without will
dant living hypothetical standard of to
sort to a grown she accustomed. determining resources were
After what meet their own
available the trial court should expenses, reasonable M.S., in the Interest of STATE of Utah any pro- imbalance in the have considered age person under the if the spective standards of eighteen years, their support left to themselves with were apparent If it own resources. previous maintain her defendant could not SALATA, Appellant. Michael resources, with her own standard dramatically with his and that No. 900193-CA. higher income could maintain a increased Appeals of Utah. living, then the trial court standard alimony to raise could awarded Feb. the defendant. Davis (Utah 1988) Davis, 749 (“the propriety of an ultimate test of whether, given all of award is factors, receiving alimony party
these him- or herself ‘as be unable to
will possible
nearly as at ” marriage,’ quoting enjoyed during ... 411).4
English, 565 P.2d at trial court failed to fol-
Inasmuch as the approach, foregoing
low making its
abused discretion majori- I concur with the
award. therefore
ty that this must remanded case *8 properly consider
allow trial court make appropri-
the established factors However, findings. plaintiffs since
ate fully when his abili-
raise will be considered determined,
ty pay alimony I believe from depart
there is no the estab- need determining alimony.
lished criteria for not, need not, extrapolated
and should so as to however, award, roughly equal receiving spouse until it is to that not be 4. The need large enough receiving spouse spouse. paying to maintain the It of the is in this sense living enjoyed during at the standard of marriage possible, [to] seek "to the extent if that amount of would low- equalize post-divorce liv- paying spouse of the er Rasband, ing Rasband v. standards.” receiving spouse. Alimony below that of the (Utah Ct.App.1988). may only raise the standard