Bell v. Bell

• Decision Date: 14 November 2013
• Docket Number: No. 20110716–CA.,20110716–CA.
• Citation: 745 Utah Adv. Rep. 5,312 P.3d 951
• Parties: John BELL, Petitioner and Appellee, v. Stephanie Wadsworth BELL, Respondent and Appellant.
• Court: Utah Court of Appeals

312 P.3d 951

745 Utah Adv. Rep. 5

John BELL, Petitioner and Appellee,

v.Stephanie Wadsworth BELL, Respondent and Appellant.

No. 20110716–CA.

Court of Appeals of Utah.

Oct. 18, 2013.

Rehearing Denied Nov. 14, 2013.

Stephanie Wadsworth Bell, Appellant Pro Se.

Terry R. Spencer, Attorney for Appellee.

Senior Judge RUSSELL W. BENCH authored this Opinion, in which Judges CAROLYN B. McHUGH and MICHELE M. CHRISTIANSEN concurred.¹

Opinion

BENCH, Senior Judge:

¶ 1 Stephanie Wadsworth Bell (Wife), pro se, appeals from the trial court's Findings of Facts and Conclusions of Law and Order Granting Decree of Divorce. We affirm in part and reverse and remand in part.

BACKGROUND

¶ 2 John Bell (Husband) and Wife were married in 1984. The parties have five grown children and two minor children. The two minor children are C.E.B., who has cerebral palsy, and N.B.

¶ 3 Husband filed a complaint for divorce seeking physical custody of the minor children.² On May 24, 2011, the guardian ad litem (the GAL) filed a motion for an order to show cause. The GAL alleged that Wife had willfully violated an earlier court order by refusing to take N.B. to the therapist chosen by the GAL.

¶ 4 On June 20, 2011, the trial court entered its findings of fact and conclusions of law. The court determined that Wife should be awarded sole physical custody of the minor children and awarded the parties joint legal custody. The court found that Husband earned $5,212.76 in monthly income from the State of Utah. The court imputed an additional $1,200 per month to Husband for his part-time employment with Eagle Gate College. The trial court also imputed income of $1,260 per month to Wife.

¶ 5 In calculating child support, the trial court considered Husband's income from his employment with both the State of Utah and Eagle Gate College “in light of the high expenses, including toiletries and supplements, incurred by the parties' minor child, C.E.B., due to his handicaps.” The court determined that Husband should pay child support in the amount of $1,202.88 per month. The court also determined that child support for C.E.B. should be terminated when he turns eighteen years of age to allow C.E.B. to obtain the Social Security and Medicaid benefits for which he will then be eligible. The court clarified that termination of child support for C.E.B. was premised upon C.E.B. receiving such benefits at age eighteen. The court further determined that each party be allowed to claim one minor child as a dependent each year until the oldest child, C.E.B., is no longer eligible to be claimed as a dependent for tax purposes.

¶ 6 The court determined that Husband's expenses, after payment of child support but before alimony, were $2,500 per month and Wife's expenses, including mortgage payments, were $3,700 per month. The court awarded alimony to Wife, stating,

The Court finds, applying the Jones factors and taking into consideration the tax treatment of alimony payments, that it is fair and equitable that [Wife] should be awarded $1,800 per month alimony, payable directly by [Husband] to [Wife] in two equal payments to be made on or before the 10th and 25th of each month, respectively.

¶ 7 The trial court awarded the marital home valued at $190,000 to Wife, which award included the equity of $94,000 and mortgage obligations. In light of this award to Wife, the court awarded Husband $119,000 from his 401(k) and 457 accounts. The court also awarded Wife her Woodward share of Husband's retirement pension plan with the State of Utah. See generally Woodward v. Woodward, 656 P.2d 431 (Utah 1982). The court determined that Husband should pay $4,000 toward Wife's attorney fees in addition to a previously ordered $375 fee award.

¶ 8 The trial court also determined that Wife had violated the court's earlier order for therapy by intentionally interfering with N.B.'s counseling with the therapist selected by the GAL. The court ordered Wife to serve five days in jail for contempt. The court stayed the jail sentence based upon counsel's representation that Wife would heed the order in the future.

ISSUES AND STANDARDS OF REVIEW

¶ 9 Although Wife attempts to assert multiple issues in her brief, this case turns on the merits of the following issues.³

¶ 10 Wife first argues that the trial court erred in awarding the parties joint legal custody when neither party filed the requisite parenting plan. We review custody determinations under an abuse of discretion standard, Hudema v. Carpenter, 1999 UT App 290, ¶ 21, 989 P.2d 491, giving the trial court broad discretion to make an initial custody award, see Black v. Hennig, 2012 UT App 259, ¶ 10, 286 P.3d 1256.

¶ 11 Wife next argues that the trial court erred in its child support determination by imputing income to her for purposes of calculating child support without determining her ability to produce income and by failing to consider the extraordinary expense of caring for C.E.B. “We review a trial court's child support order for an abuse of discretion.” Connell v. Connell, 2010 UT App 139, ¶ 7, 233 P.3d 836.

¶ 12 Wife asserts that the trial court erred in its division of the marital estate. “Trial courts have considerable discretion in determining ... property distribution in divorce cases, and [their decisions] will be upheld on appeal unless a clear and prejudicial abuse of discretion is demonstrated.” Trubetzkoy v. Trubetzkoy, 2009 UT App 77, ¶ 8, 205 P.3d 891 (omission and alteration in original) (citation and internal quotation marks omitted). “Indeed, the trial court's discretion is so broad that its actions enjoy a presumption of validity.” Id. (citation and internal quotation marks omitted).

¶ 13 Wife also asserts that the trial court erred by failing to award sufficient attorney fees. “[W]e review a trial court's decision regarding attorney fees in a divorce proceeding for an abuse of discretion.” Connell, 2010 UT App 139, ¶ 6, 233 P.3d 836 (citation and internal quotation marks omitted).

ANALYSIS

I. Joint Custody

¶ 14 Wife maintains, and Husband agrees, that the trial court erred in awarding joint legal custody of the minor children to the parties in this matter because neither party filed a parenting plan as required by Utah Code section 30–3–10.2(1). In support of her argument, Wife cites Trubetzkoy v. Trubetzkoy, 2009 UT App 77, 205 P.3d 891, a case that she argues requires the filing of a parenting plan by one or both parties as a prerequisite to an award of joint legal custody. See id. ¶ 13 (“Reading the statutory provisions as a whole, we conclude that the legislature unambiguously provided that joint legal custody is available ‘if one or both parents have filed a parenting plan ... and [the trial court] determines that joint legal custody ... is in the best interest of the child.’ [Utah Code Ann.] § 30–3–10.2(1). Because neither party filed a parenting plan, joint legal custody was unavailable.” (omissions in original) (emphasis omitted)).

¶ 15 Although Wife may not have adequately preserved this argument below, we are generally “unwilling to disregard controlling authority that bears upon the ultimate resolution of a case solely because the parties did not raise it below.” Patterson v. Patterson, 2011 UT 68, ¶ 18, 266 P.3d 828;see also id. ¶ 13 (“Our preservation requirement is self-imposed and is therefore one of prudence rather than jurisdiction. Consequently, we exercise wide discretion when deciding whether to entertain or reject matters that are first raised on appeal.”). The Trubetzkoy case Wife cites is controlling authority for the proposition that the court may not award joint legal custody to the parties absent the filing of a parenting plan. The parties concede that neither filed a parenting plan. Because neither party filed a parenting plan, the trial court exceeded its discretion in awarding joint legal custody to the parties. As a result, we reverse the trial court's custody award and remand this issue to the court.

II. Child Support/Imputation of Income

¶ 16 Wife next argues that the trial court erred in its child support determination by imputing income to her for purposes of calculating child support. She asserts that the court's imputed monthly income determination to her of $1,260 is not adequately supported by the evidence. Husband argues that Wife has failed to marshal the evidence. “ ‘[T]o properly discharge the [marshaling] duty ..., the challenger must present, in comprehensive and fastidious order, every scrap of competent evidence introduced at trial which supports the very findings the appellant resists.’ ” Oneida/SLIC v. Oneida Cold Storage & Warehouse, Inc., 872 P.2d 1051, 1053 (Utah Ct.App.1994) (second alteration and omission in original) (quoting West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1315 (Utah Ct.App.1991)).

¶ 17 Wife attempts to meet her marshaling burden by setting forth some of the evidence in support of the trial court's imputation of income determination. Wife provides the following facts in support of that determination: Wife has an advanced education; Wife worked sporadically throughout the marriage; Wife, at times, babysat or taught music lessons in her home; Wife has taught as many as five or six students; and Wife testifiedthat she thought she could make considerable money teaching music.

¶ 18 Our review of the record reveals some additional evidence pertaining to Wife's ability to earn income. For instance, Wife testified that most recently she had three music students, with each paying her just under $20 per week or around $65 per month. Additionally, Husband testified that Wife has a bachelor's degree in education and a master's degree in viola performance and that Wife has gone back to school to get additional education in American Sign Language and special education instruction. Husband further testified that Wife could make around $44,300 annually as a special education teacher, with a typical starting salary of $27,900. The parties' adult son, who...