Brooks v. Brooks, 920733-CA

• Decision Date: 12 September 1994
• Docket Number: No. 920733-CA,920733-CA
• Citation: 881 P.2d 955
• Parties: Jo Ann BROOKS (Nunley), Plaintiff, Appellee, and Cross-Appellant, v. Thomas M. BROOKS, Defendant, Appellant, and Cross-Appellee.
• Court: Utah Court of Appeals

Page 955

881 P.2d 955

Jo Ann BROOKS (Nunley), Plaintiff, Appellee, and Cross-Appellant, v. Thomas M. BROOKS, Defendant, Appellant, and Cross-Appellee.

No. 920733-CA.

Court of Appeals of Utah.

Sept. 12, 1994.

Paul H. Liapis and Kim M. Luhn, Salt Lake City, for appellant.

Randall J. Holmgren, Salt Lake City, for appellee.

Before BILLINGS, JACKSON and ORME, JJ.

BILLINGS, Presiding Judge:

Thomas Brooks appeals from an order (1) requiring him to pay one-half of prospective private school costs for his daughter, one-half of past private school expenses, and one-half of past medical and dental expenses and (2) refusing to allow him a credit for Social Security benefits his daughter receives due to his disability. His ex-wife, Jo Ann Nunley, cross-appeals, seeking an upward adjustment of child support and an order requiring Brooks to pay the entire cost of visitation. We affirm in part and reverse and remand in part.

FACTS

Brooks and Nunley were divorced in Los Angeles, California in 1985. Pursuant to the decree of divorce, Brooks was ordered to pay $300 per month in child support for their daughter Michelle. Nunley was ordered to pay for Michelle's transportation to and from Los Angeles for visitation with Brooks. This order was based in large part upon Nunley's employment with TWA Airlines, which afforded her free or discounted air travel. Just after the divorce, Nunley moved to Salt Lake City, and Brooks subsequently relocated to Montana.

In June 1988, Nunley filed a "Petition for Modification of Foreign Divorce Decree." She alleged a substantial change in circumstances necessitating a change in her obligation to pay the transportation costs of Brooks's visitation with Michelle. Nunley later filed an amended petition seeking an order requiring Brooks to pay one-half of Michelle's medical and dental expenses, one-half of her private school tuition, and increased child support.

The case was tried in April 1991. Brooks testified that at the time of the divorce he had retired for medical reasons from the Los Angeles Police Department where he was earning a net monthly income of $1600. In addition, he testified that he now suffers from numerous physical ailments, including thyroid disease, an ulcer, and heart disease and that as a result of his disability, he presently receives a pension of $2332.26 per month plus $697 per month in Social Security disability benefits. Nunley attempted to demonstrate that Brooks's income exceeded the $3029.26 per month he claimed. She presented evidence that Brooks purchased a $53,000 Ferrari in 1986 and that he deposited $173,650.68 in a checking account between May 1988 and July 1990.

Nunley testified that her employment with TWA ceased in June 1989. At the time of trial, Nunley was self-employed in a costume business. She testified that she took no salary from 1989 through 1991, except for $2000 in 1989 used to pay for Michelle's private school tuition. Despite receiving no salary, Nunley stipulated to an income of $833 per month for the purposes of calculating child support. Brooks claimed Nunley had access to corporate income from her costume business.

At trial, the parties disagreed about Michelle's private school education. During the marriage, Michelle attended private school in California. However, Brooks claimed that after the divorce, Nunley decided unilaterally to send Michelle to private school in Utah, never asking him to share the tuition costs before filing her petition. ¹ Nunley claimed she had understood that Brooks desired to continue Michelle's private school education. In fact, in an Order to Show Cause proceeding initiated by Brooks in California, he threatened to seek custody of Michelle in part because Nunley had withdrawn her from the private school she was then attending.

On April 26, 1991, the trial court signed a minute entry. Although stating that neither party had accurately revealed his or her income, the court concluded that Nunley's monthly income was "around $900," and that Brooks's was $3029.26. The court denied Nunley's request for increased child support, finding there had been no substantial change in circumstances under Utah's child support guidelines.

With respect to travel expenses, the court found there had been a substantial change in circumstances warranting a modification of the decree. The court ruled that because Nunley was no longer employed by TWA and therefore no longer entitled to discounted air travel, and because Brooks moved from Los Angeles to Montana, Nunley's obligation to pay the entire cost of transportation should terminate. The court therefore ordered the parties to share equally the visitation costs.

Further, the court found that both parties wished Michelle to remain in private school. Therefore, the court ordered the parties to share equally the costs of tuition, books, supplies, school activities, and uniforms, but not extracurricular activities. Brooks was also ordered to pay one-half of Michelle's past private school expenses.

Initially, the court credited Brooks with the amounts of Social Security benefits paid to Nunley on behalf of Michelle by reason of his disability and directed him to pay any deficiency on a monthly basis. However, Nunley subsequently filed a "Motion for Clarification of Ruling and for In-Camera Interview," and after numerous motions, the court vacated its April 26, 1991 ruling granting Brooks the credit. The court ruled instead that, pursuant to an accounting by the parties, Brooks owed $8312.75 for one-half the private school tuition and costs, $578.62 for one-half the medical and dental expenses, and $2900.69 for uniforms, activities, and supplies. On October 22, 1992, over the objection of Brooks, the court entered findings of fact, conclusions of law, and an order modifying the decree of divorce. The court awarded judgment to Nunley in the amount of $11,792.06 and denied Brooks credit for the Social Security benefits Michelle receives. Brooks appeals from this order, and Nunley cross-appeals.

I. CHILD SUPPORT

A. Private School Fees and Increased Child Support

On appeal, Brooks asserts that the trial court abused its discretion in modifying the divorce decree by requiring him to pay one-half of Michelle's private school costs and in entering judgment for one-half of previously incurred private school costs. Nunley cross-appeals, contending that the trial court abused its discretion in failing to increase Brooks's basic child support contributions.

Under Utah's statutory child support scheme, the trial court is to apply the child support guidelines as a rebuttable presumption in establishing or modifying the amount of temporary or permanent child support. Utah Code Ann. § 78-45-7.2(2)(a) (Supp.1994). "In order to rebut this statutory presumption, the trial court must make a finding that use of the guidelines would be unjust, inappropriate or not in the best interest of the child." Hill v. Hill, 841 P.2d 722, 724 (Utah App.1992) (citing Utah Code Ann. § 78-45-7.2(3) (1992)). Furthermore, child support modifications are proper only when the party seeking modification demonstrates a material change in circumstances. Utah Code Ann. § 78-45-7(1)(a), (2) (Supp.1994); Christensen v. Christensen, 628 P.2d 1297, 1299 (Utah 1981). Moreover, section 78-45-7.2 of the Utah Code defines material change of circumstances with mathematical precision, and contemplates a modification or adjustment when "there is a difference of at least 25% between the existing [child support] order and the guidelines." Utah Code Ann. § 78-45-7.2(6) (Supp.1994).

In the instant case, the trial court concluded that no substantial and material change in circumstances had occurred with respect to the child support calculation. To support that determination, the court made the following findings:

5. The Court finds that the Defendant, THOMAS M. BROOKS, has a current gross income of $3,029.26 per month. The Court bases this finding on all of the evidence submitted at trial, including the evidence that his disability and social security income is tax-free, and including his income producing capabilities, and the Court believes that the finding is based on due consideration of all of the evidence.

6. The Court finds that the income of the Plaintiff is approximately $10,000.00 per year (or about $833.00 per month), based upon the stipulated testimony of the Plaintiff at trial, and the Court finds that her imputed income should be approximately $833.00 per month. The Court did not find evidence to support a finding that Plaintiff was earning more than her stipulated income of $10,000 per year.

7. The Court finds that there has not been a substantial and material change of circumstances based upon its finding that Plaintiff has a minimum of $833.00 gross per month from her costume business, and further that she earned a profit of approximately $4,493.00 for the tax year 1990 from her costume business, that she had incorporated into her tax return a rental write-off of $5,400.00 while operating this business out of her home, and that the Plaintiff had the ability to write-off substantial amounts of expenses through her business, without being required to take money from the business in a taxable form. The Court finds that the Defendant claims a $400.00 per month expenditure to maintain his Ferrari automobile and that the total of Defendant's checking account deposits for the period May 16, 1988 through July 17, 1990, shows approximately $173,000.00 of deposits and $171,000.00 of withdrawals. While there are certain explanations made which could explain some of the discrepancy, it certainly did not describe or explain away all of the discrepancy as to the Defendant's expenditures.

....

9. The Court is of the opinion that the exhibits and testimony produced by both parties at the time of the trial do not fully reveal the nature and extent of their respective incomes and, therefore, the Court cannot draw any more...