*1 MARTINEZ, Plaintiff C. Karen Appellant, MARTINEZ, Defendant M.
Jess Respondent.
No. 860159-CA. Appeals
Court of of Utah.
April *2 Hansen, (argued), Crist
Neil C. Crist Bountiful, Spratley, plaintiff ap- & pellant. Salahor, M. Liapis,
Yasemin H. Paul Kasting (argued), City, Kent M. Salt Lake respondent. defendant JACKSON, Before BILLINGS DAVIDSON, JJ.
OPINION DAVIDSON, Judge: appeals Plaintiff from a decree of divorce by the entered Second District Court. part, affirm part, reverse in remand.
FACTS were June married on 1968; subsequently, three were children plain- born. the time marriage, At high gradu- tiff and defendant were school ates and defendant an en- serving was Army. listed man the U.S. defend- After discharge service, accept- ant’s from the he Base, employment ed at Hill Air Force he Utah where worked as an instrument repair gross mechanic with an annual sala- $10,000.00. ry approximately Defendant higher began his education in 1970. De- fendant his testified discussed pursuit of a and that thought “good it idea” that she but terribly in “wasn’t favor of it” it because consuming. time testi- would be Plaintiff fied she was favor of the decision be- family cause the would “have a fu- better completed ture.” Defendant under- his program graduate years five and one-half education, During phase later. of his supported family defendant his wages G.I. Bill Plaintiff benefits. gave birth children in undergraduate, de- While an defendant school, par- apply cided to to medical agree application ties that defendant’s marriage. threatened their medical school Plaintiff was concerned that defendant’s employment during years lack of four financially appropriate detrimental adjustments” would be family and that school agreement medical would se- changes the event of future verely ability “spend limit defendant’s in financial circumstances. plaintiff. time” with much the children and After counsel, hired new she Seeing adamant, plain- that defendant was filed a verified complaint amended in No- agreed during him” tiff “stick vember in which the distribution of *3 that, years believing four next as a result exemptions tax remained the same. On sacrifices, their mutual the family of would however, May plaintiff filed a mo- eventually enjoy higher standard of liv- tion for leave to amend the complaint ing. subsequently granted. which was This Defendant entered school in medical 1977 amendment listed salary defendant’s as graduated Family support and in 1981. $100,000.00 per requested annum and loans, savings, was derived from student the child and awards re- remainder of defendant’s G.I. Bill en- significant flect the increase in defendant’s titlement, $7,000.00from defendant’s moth- requested income. Plaintiff attorney fees estate, plaintiff’s er’s and and costs which would reflect the current part-time employment. state litigation opposed of the as to that Upon completion school, of medical de- anticipated in 1983. Plaintiff request- also accepted internship Pennsyl- fendant in ed the trial court to strike the previously reluctantly Plaintiff vania. left Utah. The proposed of exemp- distribution federal tax family’s first in Pennsylvania residence tions for the children. in an was isolated location with no tele- Trial to the May court was held on phone playmates and no for the children. 1985. The decree of divorce awarded cus- family larger then rented a home in a tody plaintiff subject children plaintiff and sought employment town reasonable Plaintiff visitation. received supplement salary defendant’s as an intern. per per $300.00 month child child position Plaintiff testified she found a subject per to an abatement of $100.00 a fast at food restaurant but defendant did month child in the event that a child not want her there to work because it should for live with defendant an extended embarrassing. would be Because of the period. The of exemptions distribution tax friction between the and defend- was as initially agreed stipulation relationship admitted ant’s with another separation Alimony and settlement. woman, plaintiff requested they seek mari- awarded in the amount $400.00 counseling tal but defendant refused. Be- period years month for being five plaintiff’s prospects cause of lack for period years nonterminable for a of three employment Pennsylvania suitable and plaintiff even if remarried. Plaintiff was discord, plaintiff marital the chil- attorney awarded in the fees amount of family dren returned to the home in Utah $2,500.00. also Plaintiff was awarded the to wait for finish his defendant to medical mortgage home eq- to a and an training. Although plaintiff understood uitable lien in favor defendant for the practice defendant intended to medicine in $17,528.00 sum of payable the occur- Utah, training defendant his completed enumerated, rence contingencies. future accepted employment Pennsylvania. The award of the home necessi- complaint Plaintiff filed a verified for monthly tated that she continue to make 15,1983. stipula- February divorce mortgage payments of $309.00. separation signed agreement, tion following presents Plaintiff issues July and filed with the court on (1)
29, 1983, to defendant for review: did the award agreed defendant could exemptions of the two violate federal exemptions federal tax tax claim two law; fees, (2) attorney exemption children while she retained were the awards inadequate agree- support, the third so as child. The settlement discretion; (3) recognized also need ment to “make constitute an abuse defendant’s medical prop- marital tion of tax exemptions during period erty subject to division? stipulation separation agreement Therefore, was in effect. defendant was
DISTRIBUTION OF TAX INCOME exemptions entitled to the stipulated two EXEMPTIONS prior the entry of the decree of divorce. Plaintiff contends the distribution of However, plaintiff's amended com exemptions state and federal income tax plaint put in 1985 of tax distribution two of the children to defendant vio- exemptions proceed issue in divorce Supremacy lates the Clause the U.S. ing. provisions separation light Constitution Tax Re- agreement longer were no effective. Plain its form Act and effect on 26 U.S.C. tiff requested exemptions the tax for all 152(e) (1988).1 three children but the trial court’s order did 152(e)(1) Subsection describes the normal request. not honor that This is con result parent situation where custodial claims *4 trary general provisions to the of section exemption the tax for a An excep- child. 152(e). Any argument stipulation that the provided 152(e)(4)(A). tion is in subsection separation agreement and qualifies as a parent The noncustodial may claim the ex- pre-1985 instrument, where will emption qualified pre-1985 when there is a ingly relinquishes right her exemp to the parents instrument between the which law, neglects tions under plaintiff’s federal parent states the noncustodial shall be rejection of its post-divorce terms exemption entitled for the child and period. By amending complaint, plain her parent provides yearly at least $600.00 tiff modified and affirmatively rejected the support. child’s The definition of a pre-divorce distribution. Plaintiff is enti qualified pre-1985 instrument stated in tled exemptions to the tax for all 152(e)(4)(B) subsection as: children in view of custody the award of purposes For paragraph, this the term failure of defendant to estab “qualified pre-1985 instrument” means any exception general lish to the rule stat any separate decree of divorce or mainte- ed above. agreement— nance or written
(i) 1, which January is executed before AWARD OF ATTORNEY FEES
(ii) argues which Plaintiff pro- on such date contains the trial court
vision
subparagraph (A)(i),
awarding
described in
abused its discretion in
attorney
$2,500.00
only
fees of
when she asked for
$7,871.00.
clearly
Plaintiff
(iii)
demonstrated
which is not modified on or after
need
recognized
for assistance. The court
such date in a
which
modification
ex-
by making
However,
that need
the award.
pressly provides
paragraph
this
the court considered written
shall
statement of
apply
agree-
not
to such
decree
attorney fees as a
ment.
basis
the award.
generated
Extensive fees were
by interest
parties stipulated
to the distri
preparation
expert
testimony
exemptions
bution
tax
the chil
support
offered to
the valuation of the
separation agreement
dren
filed with
degree.
argument
medical
That
was re
the court in 1983. The distribution was
jected by the lower court.
find no
incorporated in the verified amended com
abuse of discretion in the award.
plaint also
year. Subparagraphs
filed that
(i)
(ii)
152(e)(4)(B)
of subsection
appeal
are
Because
did
defendant
not cross
by
issue,
satisfied
the 1983 filings. There
was no
we do not consider whether
prior
written modification
January
there
presented
was sufficient evidence
expressly
revoked the
justify any
distribu-
trial court to
attor-
1. The decree of
comput-
divorce utilizes the term "deduc-
lowance subtracted
when
tion"
emption"
the United States Code utilizes "ex-
ing tax owed.
referring
when
to the individual al-
ney
Newmeyer
fees.
v. Newmeyer, 745 economic reality, the children who reside
(Utah 1987).
P.2d
with their mother will
enjoy
not
standard
a.
living
remotely comparable to that of
AWARD OF CHILD SUPPORT
their father.
78-45-3,-4
Utah Code Ann. §§
The award
established
the trial court
(1987) establish
obligation
par
of both
justified
cannot be
applying
when
support
ents to
their children and “[a]
factors
listed
in Utah Code Ann.
right
child’s
support
paramount.”
to that
78-45-7(2) (1987).3
We find
Woodward,
Woodward v.
her children are left in
precariously
bal-
(Utah 1985). The
Supreme
Utah
Court con
anced financial existence while defendant is
may
tinued “The trial court
fashion such
relatively affluent. Plaintiff and the chil-
orders
relation to the children
great
dren are in
need of assistance. and their
as is reasonable and nec
defendant has no responsibility
sup-
for the
essary, considering
the needs of
port
anyone
plaintiff,
other than
children,
but
ability
also the
children, and himself.
parent
pay.”
Id. Plaintiff contends the
award of $300.00 month
child was
present
At the
time the courts of this
inordinately
so
low that
it constituted an
state do not
guidelines
have uniform
abuse of discretion
the trial court. We
employ in determining an award of child
agree.
support.4 Many
jurisdictions,
other
how-
ever,
have established child
guide-
The trial
gross
court found defendant’s
*5
schedules,
lines or
$100,000.00
upon
based
income was
current eco-
per annum or
$8,333.00 per month,
nomic data as to
rearing
at the
the cost of
chil-
time of the
divorce,
dren,
while it
to
plaintiff’s
by
determined
be used
trial
Although
courts.
gross
$1,033.00
income
per
month.2 we do not use the
approaches
numbers or
The court
plaintiff
monthly
found that
fashioning
case,
the award in this
a
$2,050.00
expenditures of
inwas
need
general comparison illustrates the inade-
of financial assistance from defendant to
quacy of the award. Because these formu-
assist the children “in maintaining a stan-
upon adjusted incomes,
las are based
we
living
comparable
dard of
more
to that
directly compare
cannot
the numbers.
enjoyed by their father.”
Nevertheless,
each,
it is clear that under
support
the
higher.
would be much
For
Assuming
spend
the three children
Colorado,
example, in
an income shares
year
plaintiff,
of the
with
guideline state,
approx-
the award would be
gross
income,
monthly
including awarded
$1,535.00.
imately
support
Under Wisconsin’s
alimony,
$2,333.00.
child
is
Guidelines,
Support
Child
After taxes
which were re-
have been deducted from the
portions
cently adopted
taxation,
neighboring
of income
our
to
states of
plaintiff’s
Nevada,
monthly
approxi-
only
net
Idaho and
where
noncus-
meager
parent’s
mates her
monthly expenses
todial
income is
leav-
considered and
ing
leeway
emergencies,
gross
no
presently
presump-
where
income is
29%
necessary replacement expenditures,
award,
support
tive
the child
for the three
any
grim
$2,320.00.
amenities of life. Under such
children would be
(c)
earn;
plaintiff
2. The lower court
ability
obligor
also found that
ex-
of the
to
pected
(d)
earn;
salary
a
ability
25% reduction in her
because of
obligee
of the
to
voluntary
position
(e)
transfer to a less stressful
obligee;
the need of the
employment.
within her
(f)
age
parties;
(g)
obligor
responsibility
for the
78-45-7(2)
following
3. Section
lists the
factors
support of others.
awarding prospective sup-
to be considered in
port:
notes, however, that a Task Force
4.This Court
(a)
presently
living
established
the Judicial Council is
the standard of
and situation of the
propriety
adopting
parties;
investigating
Uniform
(b)
Support
upon
par-
relative wealth and income of the
Child
Guidelines
Utah based
ties;
current economic data.
the economic
herself;
Under
circumstances
cient income for
ability
and the
case,
support
provide
of this
the award of child
the husband
support.”
Id.
inequitable
must
411-12.
be modified. The dis
argues
sent
the case must be remanded to
Jones,
(Utah
Jones v.
trial court shall enter its order for child affluence for the other when the one sacri- support in accordance with Utah Code Ann. help ficed to the other achieve such afflu- (1987). 30-3-5.1 totality ence. When the of the English *6 applied standards are the clearly award is
AWARD OF ALIMONY
inadequate.
The standard
relating
of review
The court below also abused its discre-
alimony requires that we not disturb the
limiting
tion
the
alimony
award of
to a
trial court’s award unless “such a serious
period
years; being
of five
nonterminable
inequity has resulted as to manifest a clear
by
remarriage
reason of
years.
for three
abuse of
English
discretion.”
English,
v.
Olson,
In
(Utah
Olson v.
75 making alimony perma- limitation and from the earning capacity increased afford- changed subject nent to future circum- ed degree the medical and the numerous modification, of its stances. years the enjoyed Gardners the standard of pointed to the Court wife’s limited edu- living afforded the medical degree. cation, her experience, lack work and That is case not the here. The Court not- expectation she “no that had reasonable ed, “The which cases have refused to hold obtaining employment years two hence that professional that degrees practice and con- to support will enable her herself at a stitute property subject marital to valua- living approaching standard of even tion and distribution have nonetheless as- during marriage.” she Id. sessed degree and divided value Paffel, See also 732 P.2d Paffel practice or legal basis of other (Utah 1986). 103 equitable remedies.” Id. at 1080-81. For previously the reasons stated and Court pattern described common fact record, facts in based we hold applicable acknowledgment this entitled to an award of degree’s equitable worth as a situation continuing on a basis and we where “the is supported through- husband permanent alimony in the sum of long out a graduate professional pro- provisions month to the $750.00 gram by working wife, the couple (1987). Utah Code Ann. 30-3-5 graduation. is divorced after soon In such cases, there few are marital assets to dis- THE MEDICAL AND DEGREE tribute, and the courts have considered oth- EQUITABLE AWARD OF er ways compensating spouse.” Id. RESTITUTION at 1081. This is essentially situation We next must determine whether presented marriage here. While this has degree defendant’s prop medical is marital many years continued for assets erty subject to division. In the recent case are the home and the enhanced Gardner, of Gardner v. P.2d 1076 capacity earning capaci- of defendant. The (Utah 1988), Supreme the Utah Court dis ty recognized fashioning must be those problem cussed this noted there is “legal necessary remedies” authority jurisdictions from other on both readjust assist her life. The However, Court, sides the issue. this valuation and distribution medical Petersen, Petersen v. 239-42 degree in case is not a alterna- viable Rayburn v. Rayburn, (Utah App.1987) tive. speculative Valuation would be in the (Utah P.2d App.1987), ana extreme, ignores distribution fact lyzed the issue and held that medical personal that the to defendant.7 degree is not marital property subject to rule, prefer up- to follow the *7 agree division in a divorce decree. Rayburn, Petersen held in that a medi- Supreme the with Utah Court “that an degree cal subject is not to valuation and professional degree educational or is diffi However, distribution in a divorce. that cult value and such a valuation does striking example highly paid case is a aof easily understanding not common fit the professional disposing of wife Gardner, his with a property.” the character of 748 support just minimum amount that P.2d at 1081. The Court in Gardner was professional reaching required is a of income to address the level issue because significant professional was for which the and his there other accu both during marriage resulting mulated wife have prevents striven. This wife argued specialty estimating It is future that the value of a in the same A decision locale? change degree speculative happenstance totally is or medical no more than or could even damages degree. measuring However, wrongful in a death Can case. terminate the value of the medical death, wrongful change in the measurement defendant return to court then begins upon at death and is to no future valuation based more and distribution Here, prevent plaintiff variables certain Could introduced the decedent. we circumstances? guess making which could must at the future course of defendant's defendant decisions from degree? practice impact career. Will in the same he continue the value 76 enjoying spouse
from her labor tions and sacrifices of the in benefit one support goals. in her husband’s enabling degree the other to attain a sacrifice See Weitzman, The generally compensated L. Divorce years have by many been Revolution, 5, (1985). 124-35 ch. lifestyle of the comfortable degree permitted. alimony Traditional marriage in From the time of 1968 analysis nicely equity works to assure in 1982, separation parties until their such cases. enjoyed pleasures of the material few “During case, In of recurring typi life. The court found that the 14 another kind together, plain- that the lived fied years Marriage Graham re Gra [In extensively in ham, tiff assisted Defendant’s ob- (1978)], 574 Colo. P.2d 75 education, taining college degree medical where occurs shortly divorce after addition, plaintiff internship. made obtained, degree alimony is traditional in order substantial sacrifices to facilitate analysis hardship often work be would completion of Defendant’s medical cause, spouses while modest have schooling internship.”8 Plaintiff ac- divorce, incomes at the time of the one is cepted necessary sacrifices significant of a in the [threshold] aspirations anticipation defendant’s earnings. Moreover, crease future benefits. trial record shows the spouse so who sacrificed the other could following exchange: degree precluded enjoy attain Q. Okay. any Was there discussion of ing anticipated dividends the future benefits that would be obtained provide.... ordinarily will In such through this? cases, analysis must become A. fairness, Yes. He told me if that more achieve an creative to [defendant] sacrifice, I would if I would see it award of “rehabilitative” “reimburse through, someday he would make it alimony, ment” not terminable re up to me and would have we material marriage, appropriate. See, bemay e.g., gone items that we had without. And Haugan Haugan, 117 v. Wis.2d his hours would be flexible and he would (1984); Mahoney N.W.2d 796 Maho spend have more time to with himself (1982). ney, 91 453 A.2d N.J. If and the we just children. would be Id. n. 4. This the situation where our patient. analysis “must more become creative Defendant offered no rebuttal to the ex- Equity achieve fairness.” Id. demands change. recognition of the sacrifices and contribu- Petersen, by plaintiff
This Court in tions made de- 737 P.2d at foresaw the situation now at issue. fendant’s medical education. The defend- Writ- ing Court, Judge recognized by plaintiffs Orme ant has enriched been efforts and, might therefore, that an occasion arise whereby one has earned spouse high benefit, reaching level of permanent award of some financial just at the time of divorce rather right, than the in her own will allow her frequent more par- situation which the share in benefits the economic achieved enjoyed ties the benefits of the hus- through joint their efforts. The modified band’s medical education for a number award of merely traditional main- Judge years. wrote: Orme plane tains on a modestly above one, experienced by pat- during In cases instant like the life *8 set, may marriage. terns be largely have Even this modest award been potential through happening can lost predicted both be of some future reliability, with some and the contribu- circumstance.9 dissent would restrict family surely 8. We must wonder whether defendant could home and would not have had completed plaintiff’s part-time have or would have entered and work. benefit of plaintiff medical school had obtained a divorce likely alimony recipient 9. forces the to earlier. Defendant gated would have been Traditional obli- understanding pay alimony support. to with and child make future choices He probably may would in ali- not have the benefit of the that such result the loss of choices
77
plaintiff
supported
to an award
traditional
contributed to and
de-
acquired
newly
defendant’s
lev-
based
fendant’s educational achievements.
el of
Because there has been little
income.
The case law remedies in this situation
in-
property accumulated and because the
establish
spectrum,
narrowly
those
separation, plain-
come
after
acquired
was
focusing
support provided
on financial
to
to
permanent
tiff is entitled
a more
reme-
professional spouse,
he or
while
she
dy-
student,
was a
to those
consider
engendered
This issue has
much case
totality
non-professional spouse’s
of the
ef-
profes-
Many
law.
have held that a
courts
family
forts in the
venture
obtain
eco-
property
sional
is
marital
sub-
through
nomic stability
For
education.
ex-
ject to
but nevertheless believe
distribution
Hubbard,
ample,
in
603
at
P.2d
remedy
some
must be created for the wife was
to recover from her phy-
allowed
spouse
supported
who
the attainment of
sician
husband contributions
his direct
degree.
that
A threshold
is the
factor
support,
professional
school and
training
meaning
“support”
when
term is
expenses, plus reasonable interest and ad-
applied
non-profession-
to the efforts of the
justments for inflation.
spouse.
“support”
Must
equate
al
direct
A
recognizing
case
more than
fi-
strict
provided through
financial assistance
full
nancial contributions is Saint-Pierre v.
employment
spouse
time
while the student
Saint-Pierre,
(S.D.1984),
ing
particularly
such
the other
when
curiam
maintenance. The
party,
position through
joint
enjoys
who
his
force her to
decision reasoned "To do so would
parties,
efforts of
similar re-
under no
forego remarriage
perhaps
even be celibate
strictions on behavior. We note what
Okla-
many years simply
return on her
to realize a
Supreme
homa
bard,
Court wrote in Hubbard Hub-
past twelve
sacrifices of the
investments and
(Okla.1979),
respond-
ments to either after sev- opment. appears This the be fair and Among eral factors. these are: equitable Therefore, approach. we hold (4) party educational The level of each is entitled to an award of marriage the time of and at the time “equitable restitution” in addition to tradi the action is commenced. alimony. equitable tional use the term restitution to describe the order to (5) earning capacity party of the establish a clear distinction between it and maintenance, seeking including edu- traditional any or other form of background, training, cational employ- spousal support. maintenance or The func skills, experience, length ment work equitable tion of restitution is to enable a job market, absence the custodial spouse to share newly obtained earn responsibilities for children and the ing capacity spouse of a former who has expense necessary acquire time and capacity through signifi achieved that training sufficient education or to en- request cant efforts and sacrifices of the party appropriate able the to find em- ing spouse which were detrimental to that ployment. spouse’s development. nothing It is more (6) feasibility party seeking that the equitable sharing than an rewards self-support- maintenance can become common expectat efforts and ing living reasonably at a standard of ions.10 comparable enjoyed during to that marriage, and, so, length if of time Factors analyzed to be in deter necessary goal. to achieve this mining equitable an award of restitution include, (1) but are not limited to: (8) Any agreement by mutual made (2) length marriage; the financial during marriage, or before personal development contributions according to the terms of which one requesting sacrifices spouse; made party has made financial or service (3) the duration of these contributions and contributions to the other with the ex- during marriage; (4) sacrifices the re pectation reciprocation or other com- sulting disparity capacity be future, pensation in the where such requesting spouse tween the and the made, repayment any has not been spouse (5) thereby; benefited agreement mutual made during amount of accumulated during marriage before or concern- marriage.11 An equitable award of res ing any arrangement for the upon plaintiff's financial titution will terminate remarriage, parties. may payable lump be emphasize specific spouse 10. We nature of the facts to share in the economic benefits degree. presented earned as a result of this case and stress restitution would not in the more be awarded 11. Because this case establishes a new form of frequent marriage case where the lasted for award, spousal we hesitate to state that the many years professional after the determining equitable enumerated factors in There, granted. been sufficient assets would writing restitution are all inclusive as of the appropriate have been accumulated and an dis- Duncan, opinion. See Biswell v. requesting spouse tribution to the would enable (Utah App.1987). 86 n. 5
79 periodically depending subject sum or over time on upon to divorce, division even the circumstances of each case.12 where this pos- achievement has been made through
sible the assistance of the other CONCLUSION have, spouse. nonetheless, acknowl- edged judgment of the trial that may court af- there be situations where in part part. firmed in equity reversed extraordinary demands an award case is remanded to the trial for court nonterminable or rehabilitative reimburse- purpose taking any further evidence alimony ment in order compensate to a may necessary be to determine the spouse who substantial financial “endure[s] amount of equitable restitution to be or sacrifices her own education to defer[s] of pay- awarded and its manner help” other spouse in obtaining an ad- entry judgment pursuant ment degree. Rayburn vanced Rayburn, v. 738 opinion. against to this Costs defendant. (Utah App.1987). P.2d 241 might This (a) occur where: en- mutually
BILLINGS, J., concurs.
deavor to
one spouse’s earning
increase
JACKSON,
capacity, but
Judge
at the time of
(dissenting):
spouse
trial the
who
has benefitted from the
en-
I respectfully
loyally
dissent.
deavors is
merely
the threshold of a
Loyal
majority,
but
not
their
earnings, Petersen,
substantial
increáse
opinion,
flag
being
I
their decision as
at the
4;
(b)
737
at 242
P.2d
n.
there is insuffi-
judicial
forefront of
I regret
activism.
property
cient marital
from
to make
I
my colleagues
could not dissuade
from
compensatory
contributing
award to the
breaking
ground
new
with the invention of
spouse.
Gardner,
See Gardner v.
748
“equitable
opinion
restitution.” The
manu-
(Utah 1988).
P.2d
1081
In such
remedy
(1)
factures
divorce
that is
out-
cases,
spouse
has
who
made substantial
scheme;1
statutory
(2)
side our
without
financial sacrifices and
in-
contributions to
precedent
pronouncements
in the
crease the
capacity
the other
Court;
Supreme
(3)
requested by
Utah
not
spouse
recompense
is entitled to
for those
appellant;2 (4)
forced on the trial
beyond
contributions that are
duty
(5)
development;
courts for further
not
support normally
marriage,
associated with
justice
needed
do
to the
See,
any
less
e.g.,
benefits received.
Ro-
fact,
may,
inequity.
case and
work
Brown,
berto v.
Wis.2d
318
107
N.W.2d
(1982);
358
Mahoney Mahoney,
91 N.J.
EQUITABLE RESTITUTION
(1982).
A.2d
453
527
OR SUPPORT
Petersen,
jurisdictions
Petersen v.
P.2d
Decisions from
other
involv-
(Utah App.1987),
ing
this court
that an
compensation
spouse
held
has
who
degree
advanced
is not
property
marital
contributed to the
ad-
attainment
following
example,
Supreme
ny
subject
12. For
the Utah
$750
in the sum of
month
against unnecessarily ty-
provisions
(1987),"
Court’s admonishment
of Utah Code Ann. 30-3-5
§
couple together
ing
i.e.,
after divorce as stated in
1079,
increase
from the $400 awarded
Gardner,
defendant's lien on
However,
the trial court.
no
statute is cited
might
family
extinguished
the
amount credited
home
be
and the
equitable
basis
restitution. Our divorce
against
the overall
only
statutes and case law
the distri-
authorize
equitable
recognize
restitution. We
that this
property
support
bution
and an award
probably
be
would
a fraction of the total
spouse
the benefit of the
children. Utah
equitable
amount of
restitution awarded.
(1987).
Code Ann.
§§ 30-3-1
-10.6
majority acknowledges
1. The
the existence of
argued
2. Mrs.
trial and on
Martinez
both at
remanding
sup-
our divorce
port
statutes
the child
appeal
professional degree
is a
majority
issues. The
states:
remand,
(a)
divorce. Since
interest
to division
"On
enter
the trial court shall
its
part of
law
restitution was not a
Utah
order for child
in accordance with Utah
crafted,
i.e.,
(1987),”
opinion
the trial
until this
was
presented
Code Ann. 30-3-5.1
raise
total
$1,800
not
conducted and the evidence was
amount of child
$900 to
month; (b)
theory.
permanent alimo-
under that
”[W]e award
monies,
generally involved four
vanced
have
inheritance
funds from student
*11
(which
required
factors:
loans
the trial court
him to
repay),
proceeds
and
from his G.I. Bill.
[F]irst,
loss of the hus-
they share the
part-time during
Mrs. Martinez worked
earnings during
peri-
foregone
band’s
second,
years
three of the seventeen
of their mar-
investment;
pro-
the wife
od of
riage.
earnings
Her
ap-
nominal total
capital to enable her
vides the financial
$2,300
third,
proximately
applied
forego
earnings;
family
were
husband to
those
living expenses. During
marriage,
forego opportunities
may
she
to further
vacations,
family
purchased
took modest
development
of her own
ca-
fourth,
homes,
significantly,
furnishings,
two
pacity;
and most
furniture and
and
they
expect
gain
a return on the
Equity simply
two automobiles.
does not
through
full
of the investment
con-
extraordinary remedy
costs
demand an
in this
Thus,
marriage.
injustice
tinuation
case
extraordinary
because no
is
working spouse predicates her sacrifice
present.
personal
and
educational ad-
income
Even if Mrs. Martinez had made substan-
expectation
on the
of future
vancement
tial financial contributions or educational
sharing
returns to her from
in her hus-
in
sacrifices
order to further her husband’s
earning capacity.
band's enhanced
career,
education and
there are other rea-
Krauskopf, Recompense
Financing
for
why
hybrid
sons
the creation of a new
Spouse’s
Legal
Education:
Protection for
equitable
award of
restitution is not war-
Capital,
the Marital Investor in Human
in
hypotheti-
ranted
this case. Unlike the
379,
(1980).
380
28 Kan.L.Rev.
this court in Pet-
contemplated
cal
by
case
extraordinary
The
award fashioned
ersen,
See,
Hubbard,
e.g., Hubbard v.
home;
equity
in three vehicles worth
(Okla.1979); Haugan Haugan,
117 $3,995;
$2,000;
an IRA account
valued
Wis.2d
343 N.W.2d
799-800
value;
stocks
unknown
and household
(1984); Roberto,
While Mrs. Martinez raised the children restitution with the ma- performed responsibili- generous jority’s the household ties, (3) provided family’s pri- double-dipping; Dr. Martinez an award awards effect, restitution, mary financial in the form of his treats the professional “property” education as sub- years minable for three continuing ject period division dissolution of a mar- years, five is so low as to riage. prejudicial constitute clear and abuse $1,033 discretion. Mrs. Martinez earns First, fashioning alimony, an award of gross month. must the trial court consider the financial court, plus awarded the trial net her recipient condition and needs monthly $846, earnings provides her spouse,3 ability spouse of that be $1,246 with approximately with self-supporting, ability and the of the other meet monthly expenses, excluding *12 spouse pay. to Paffel, v. Paffel sums awarded for child support. In con- 96,100-01 (Utah 1986); Jones, Jones v. 700 trast, enjoys Dr. Martinez approximately (Utah 1072, 1985). P.2d 1075 $7,750 gross monthly Considering income. Dr. and Mrs. Martinez were married for the disparate earning capacities, the trial approximately years. seventeen The trial alimony court’s award was insufficient court found that Dr. incurs ex- Martinez inequitable in provide it that failed to the penses with employment associated his of a comparable with standard of liv- $7,000 approximately leaving per year, ap- ing. proximately $93,000 annually $7,750 per Second, earnings based on Dr. Martinez’s Mrs. approxi- month. Martinez earned trial, at the time of majority the in- has $1,033 mately per month estimated support creased total child to $900 $2,050 required per that she month to meet $1,800 and increased the duration and expenses the for herself and the three chil- alimony permanent amount of to a award order, temporary support dren. Under the per of An equitable $750 month. of award $1,100 receiving she been month in top already restitution on generous support. sought She additional mo- alimony support awards of and child fash- up nies to make the difference between her ioned by majority duplicative the and not earnings expenses net provide and to necessary to equity. achieve major with the means to make house repairs. In professional the event a that Finally, degree an advanced is the memo- degree asset, was not viewed aas marital of rialization an individual’s “attainment sought she an not award to skill, qualification the and educational upon remarriage. termination background prerequisite which is the the trial capacity.” Wehrkamp
The
court stated
it
enhanced
that
considered
large
264,
disparity
Wehrkamp,
(S.D.1984);
the
between the
v.
357 N.W.2d
266
respective earning
Petersen,
abilities and
fact
737
at
(quot
P.2d
240
cf
.
inadequate
ing
Graham,
that the wife’s
were
Marriage
resources
In re
194 Colo.
However,
429,
to meet her
I agree
(1978) (en banc)).
needs.
with
ther should
CHILD SUPPORT
ing capacity. Hodge Hodge, 337
Pa.Su
(1984);
per.Ct.
Provision for Mrs. Martinez’s needs is through generous ty per per best dealt with but fair has awarded month child $600 $1,800.5 distribution of and award of ali- for a total of Their action fails to majority’s equitable by 4. Unlike the award of resti- ed under the trial court with an award calculated tution, modified, Wisconsin, guidelines an can be from Colorado and award circumstances, markedly appropriate though even have different the court's ex- terms under meanings. Although majority continuing jurisdiction. ercise of disclaims re- Utah Code 30-3-5(3) (1987). support guidelines liance on the child er from oth- Ann. particularly here, This is do, fact, jurisdictions, they rely important presented in the situation where potentially greater amounts available in other working Dr. Martinez is limited duration. under a contract of jurisdictions justify $600 to award of in order an per month child. majority opinion interchanges problem analysis 5. The the terms The with this is that the "adjusted gross comparing jurisdictions "gross guidelines adopted income” and other are income” purposes in Utah. amount of child award- irrelevant for of an award party charge each of: they account for the effects on those debts that have been paying. (1) changes Tax tax rate under Act;6 (2) their of the tax Reform Paragraph 19 of Findings the written of
exemptions for all the children to Mrs. Mar- “[pjlaintiff Fact states that the Mar- [Mrs. tinez; (3) disposition home mort- should be awarded the exclusive use tinez] below; (4) gage debt as discussed their occupancy parties’ and residence to increase a lien in $400 $750 favor of Defendant for $17,528.00 month; (5) the sum ...” The their restitution Decree Divorce language reiterates this award in amount be determined awards “exclusive use and occu- court. trial pancy,” subject to a lien in defendant’s I would remand case the child favor. ruling The court’s oral was: “[t]he taking issue for of further Court will award to the the Plaintiff [sic] evidence a current determination parties, the home of the subject to lien ability par- need children’s for defendant’s equity share in the support, pay ents to be considered amount of one-half of the equity.” net adjustments appropriate with the other The parties’ court’s fi- allocation incomes and liabilities. obligations nancial includes no reference $28,439 mortgage debt. Mrs. Martinez HOME MORTGAGE required pay specified debts parties stipulated The trial their $8,179.73. obligations $28,- totalling jointly-acquired home had a current market specified 439 was not appear does not $63,000 $34,561. equity value of and an in the was required record. Dr. Martinez stipulated figures reveal the existence pay specified obligations debts and total- *14 mortgage obligation of a home in the sum ling $26,169.04. If Mrs. Martinez as- must $28,439. However, of neither the trial pay mortgage, sume and the house her court nor counsel $36,- identified sizeable post-divorce responsibility debt 618.73, $10,449.69 proper- debt in the more his. distribution debts and than ty. do Nor the trial court’s written Find- provides that, C Conclusion Law “[i]n ings specify of Fact who must assume the to make the order distribution ... mari- [of $28,439 mortgage obligation and make the property] equal possible, as as tal Plaintiff payments. The record Mrs. reveals that property should be awarded real ... making monthly Martinez had been a $309 ato lien in favor of for Defendant mortgage payment and therein, the court stated present equity one-half of $17,678.” party being Although that each dis- to assume and sum of support guidelines ap- signif- Child utilize different 6. The Tax Reform Act of 1986 will have a proaches responsibility to allocate impact disposable economic icant in- Dr. Martinez’s parents depending upon children divorced come, assuming ongoing gross income in public varying policy. Cassetty, generally See $100,000 range. He testified at trial that he had "Emerging Support Policy Issues in Child pay to set one-half his aside taxes. Practice,” in Support Obli- Parental Child years, . For later are 1988 and tax there two basic Research, gation: (J. Policy Practice and Cas- individuals, tax rates 28%. 15% 1983). setty ed. addition, effectively rate the law creates third demonstrates, majority opinion As the the rec- Thus, levels. 33% on income above certain support ommended amount of oth- child under portions of Dr. Martinez’s income will be taxed jurisdictions’ may guidelines radically er differ 15%, 28%, all and 33% rather than at 50%. policy underlying because goals adopted by differences Moreover, changed Utah income tax laws have given guidelines state. The in the actions interim. Counsel divorce states, Wisconsin, adjust of some such as do provide the trial court would be well advised parent. for the income This is custodial regarding complete with tax information obviously adoption inconsistent with Utah’s of a distribution, implications property of the alimo- public policy parents respon- holds ny, dependency exemption- sible for the of their For children. arrangements being proposed. The combined reasons, support guidelines these whether disposable income available to the severed fami- higher sup- other states would afford a port level of ly by prudent plan- eq- can be increased tax making an often should not be factor in during ning award a divorce. uitable in Utah. of distribu- equality objective the stated Martinez that Mrs.
tion, requirement mortgage would bur- pay the
assume (½ $14,219.50 additional den widely dispar-
$28,439),despite and the fact disposable income
ate support herself and must
Mrs. Martinez $2,200 per month. less than
the children on specifically iden- failed to the court
Since the court also mortgage,
tify the home $28,439 in amount to include the
failed Martinez Thus Mrs. equity calculation. pay the responsible to personally
became parties.
major debt the home inclusion of
The trial court’s Mrs. debt burden
mortgage in Martinez’s distribu- and debt part discretion, without even
tion is an abuse of income. gross disparity of
looking at the justifies mortgage matter alone
The home
a remand.
CONCLUSION the amount of has fixed paid. This support to be
alimony and child remand, court, on deprives the trial
action debts, prop- adjust the any flexibility to alimony, support awards and
erty, package that har-
fashion an overall The trial court’s all the variables.
monizes eq- that an so restricted discretion will be impossible. This outcome will be
uitable *15 remanded for retrial should instead be
case support and alimony,
on the
distribution issues. MAXWELL, Plaintiff A.
David Appellant, MAXWELL,
Angeline B. Defendant Respondent.
No. 860267-CA. Appeals of Utah.
Court of
6,May