Ball v. Peterson

• Citation: 912 P.2d 1006
• Decision Date: 29 February 1996
• Docket Number: No. 950150-CA,950150-CA
• Parties: Gayle BALL fka Gayle Peterson, Plaintiff and Appellee, v. David PETERSON, Defendant and Appellant.
• Court: Court of Appeals of Utah

Page 1006

912 P.2d 1006

Gayle BALL fka Gayle Peterson, Plaintiff and Appellee, v. David PETERSON, Defendant and Appellant.

No. 950150-CA.

Court of Appeals of Utah.

Feb. 29, 1996.

Mark E. Wilkey and Christian J. Rowley, Salt Lake City, for Appellant.

J. Spencer Ball, Salt Lake City, for Appellee.

Before DAVIS, Associate P.J., and BENCH, and WILKINS, JJ.

OPINION

WILKINS, Judge:

David Peterson appeals the district court's January 1995 Order Modifying Decree of Divorce and its Findings of Fact and Conclusions of Law. We affirm in part, and reverse and remand in part.

BACKGROUND

Gayle Ball and David Peterson were married in August 1970 and divorced in November 1986. At the time of their divorce, they had six minor children between the ages of three and fifteen years: Clinton, Cameron, Patrice, Cynthia, Julianne, and Robert. The original Decree of Divorce, along with a subsequent Stipulation and Addendum to Decree of Divorce, divided marital property and awarded Ms. Ball custody of the children along with child support and alimony.

The district court entered an Order Modifying Decree of Divorce in February 1992, which established Mr. Peterson's monthly child support obligation at $1547, based on a split custody arrangement. Four minor children lived with Ms. Ball, and one minor child, Cameron, lived with Mr. Peterson. This new order did not address changes in Mr. Peterson's child support obligation when the children reached the age of majority. Less than one month after the February 1992 Order was entered, Cameron turned 18 years of age.

In August 1993, Cynthia moved from Ms. Ball's home to Mr. Peterson's home to live with her father on a permanent basis. In September 1993, Patrice turned 18 years of age. Mr. Peterson proportionately reduced the amount of child support he was paying Ms. Ball because he calculated that he owed child support for only two of the four children who had originally lived with Ms. Ball.

On December 2, 1993, Mr. Peterson filed a Petition to Modify his support obligation imposed by the February 1992 Order. He alleged that a material change of circumstances had occurred because Cameron and Patrice had turned 18 years of age and Cynthia had moved in with him.

Ms. Ball filed a Counterpetition to Modify the February 1992 Order on December 28, 1993. She alleged there had been a material change in Mr. Peterson's salary, warranting an increase in his child support obligation. According to Mr. Peterson, this was the first time Ms. Ball had asserted that he should have paid increased child support since Cameron turned 18 years of age in 1992.

In January 1995, following a trial held on the cross petitions, the district court entered an Order Modifying Decree of Divorce and Findings of Fact and Conclusions of Law. The court concluded that Mr. Peterson's monthly gross income had increased since the previous order from $10,500 to $14,583, and imputed a monthly gross income to Ms. Ball, based on minimum wage, of $732. Using these figures, the new order assessed Mr. Peterson's ongoing monthly child support obligation for the three remaining minor children at $1520, based on a split custody arrangement.

The new order also concluded Mr. Peterson was liable for unpaid child support arrearages dating from November 1991 to the end of August 1994, totaling $11,813.40. These arrearages were based in part on the assumption that Mr. Peterson should have continued to pay child support to Ms. Ball until Cameron and Patrice graduated from high school, rather than until they turned 18 years of age. The arrearages were also based in part on a credit Ms. Ball receives for medical insurance payments made by her new husband, and on the court's finding that Cynthia had lived with Mr. Peterson since August 1993.

ISSUES ON APPEAL

Mr. Peterson appeals the district court's January 1995 Order and Findings and Conclusions. Mr. Peterson argues the district court erred in retroactively applying a 1994 amendment to section 78-45-7.10 of the Utah Code; by calculating his arrearages from when Cameron and Patrice graduated from high school, rather than when they reached 18 years of age; by retroactively applying its 1995 Order; and by crediting Ms. Ball for medical insurance premiums that are actually paid for by her new husband. Mr. Peterson also argues the court misapplied the law in concluding there had been "a material change of circumstances of at least 25%," and that the court failed to make findings to support its conclusions. On the other hand, Ms. Ball asks for attorney fees on appeal, claiming Mr. Peterson's arguments are frivolous.

"In reviewing child ... support proceedings, we accord substantial deference to the trial court's findings and give it considerable latitude in fashioning the appropriate relief." Woodward v. Woodward, 709 P.2d 393, 394 (Utah 1985). We will not disturb the district court's actions unless the court exceeded the limits of its permitted discretion. Id. However, we review the district court's decision for correctness to the extent it involves questions of statutory interpretation. Utah Sign, Inc. v. Utah Dep't of Transp., 896 P.2d 632, 633 (Utah 1995).

ANALYSIS

A. Retroactive Application of 1994 Amendment

We agree with Mr. Peterson that the district court erred in retroactively applying the 1994 amendment to section 78-45-7.10 of the Utah Code. Before the 1994 amendment, this section required an automatic reduction of the base combined child support award when a child turned 18 years of age, Utah Code Ann. § 78-45-7.10(1) (Supp.1991); however, the 1994 amendment changed the automatic reduction time to "[w]hen a child becomes 18 years of age, or has graduated from high school during the child's normal and expected year of graduation, whichever occurs later," id. § 78-45-7.10(1) (Supp.1994).

When an amendment is merely procedural and does not "enlarge, eliminate, or destroy vested or contractual rights," it may be applied retroactively. Salt Lake Child & Family Therapy Clinic, Inc. v. Frederick, 890 P.2d 1017, 1020 (Utah 1995) (citations omitted). However, when the change is substantive, where the new statute establishes "a primary right and duty which was not in existence at the time [this claim] arose," the statutory modification may not be applied retroactively. Washington Nat'l Ins. Co. v. Sherwood Assocs., 795 P.2d 665, 669-70 (Utah App.1990) (citation omitted).

The 1994 amendment is substantive. The amendment affects when a parent's child support obligation legally ends, and thus it affects the child's substantive right to support. Therefore, the district court should not have applied this amendment retroactively.

This amendment became effective on July 1, 1994. Utah Code Ann. § 78-45-7.10 amendment notes (Supp.1995). Because both Cameron and Patrice reached majority before this amendment became effective, the district court should have imposed the automatic reduction for both children when they turned 18 years of age, rather than when they graduated from high school. In paragraph 7 of its 1995 Order, the district court imposed the automatic reduction for Cameron beginning in June 1992, rather than in March 1992, when Cameron turned 18 years of age. In the same paragraph, the district court imposed the automatic reduction for Patrice beginning in June 1994, rather than in September 1993, when she turned 18 years of age.

Therefore, because the district court erred by retroactively applying the 1994 amendment to section 78-45-7.10, we reverse the district court's order to the extent this amendment was retroactively applied in the January 1995 Order, and remand for the court to impose the automatic reduction of the award, as explained in the former section 78-45-7.10, when Cameron and Patrice turned 18 years of age.

B. Automatic Change in Support Obligation

Cameron, who was living with Mr. Peterson, turned 18 years of age on March 13, 1992. At that time, section 78-45-7.10 provided:

(1) When a child becomes 18 years of age the base combined child support award is automatically reduced to reflect the lower base combined child support obligation shown in the table for the remaining number of children due child support, unless otherwise provided in the child support order.

(2) The award may not be reduced by a per child amount derived from the base child support award originally ordered.

Utah Code Ann. § 78-45-7.10 (Supp.1991). Nothing in the district court's existing child support order addressed what would happen when one of the children turned 18 years of age. Therefore, section 78-45-7.10 applies to this case.

As reflected in paragraph 7 of the 1995 Order, the district court applied this statute in June 1992 when Cameron graduated from high school. As explained above, the district court should have applied this statute when Cameron turned 18 years of age in March 1992, not when he graduated from high school in June 1992. Because Cameron was the only child under Mr. Peterson's legal custody at that time, the application of section 78-45-7.10 to Cameron caused the Peterson's custody arrangement to change from split custody to sole custody. This change in the custody arrangement caused Mr. Peterson's monthly child support obligation to increase from $1547 to $1745, even though he was now supporting only four, rather than five children. Mr. Peterson argues that because section 78-45-7.10 contemplates a reduction in child support when a child reaches majority, it does not apply to situations such as his where application of the statute results in an increase of his monthly support obligation. However, Mr. Peterson misreads section 78-45-7.10.

Section 78-45-7.10 does not call for a reduction in a parent's total monthly child support obligation when a child reaches 18 years of age. Rather, the statute provides: "When a child becomes 18 years of age the base combined child support award is automatically reduced to reflect the lower base combined child support obligation...