Christensen v. Christensen, 17084
| Decision Date | 01 May 1981 |
| Docket Number | No. 17084,17084 |
| Citation | 628 P.2d 1297 |
| Parties | Joyce Shirley CHRISTENSEN, Plaintiff and Appellant, v. J. Clayde CHRISTENSEN, Defendant and Respondent. |
| Court | Utah Supreme Court |
Robert C. Cummings, Gordon A. Madsen, Salt Lake City, for plaintiff and appellant.
George S. Diumenti, Bountiful, for defendant and respondent.
This is an appeal by Plaintiff, Joyce Shirley Christensen, from an order of the Third District Court modifying the child support provisions of a 1972 divorce decree which dissolved the marriage between her and defendant J. Clayde Christensen. At issue here is the modification of a provision in the decree. The original provision provided for basic child support payments of $12,000 per year, plus additional payments based on defendant's income. That provision, as modified by order of the district court on November 30, 1977, 1 states:
IT IS ORDERED that in the event defendant's net income from his dental practice exceeds $24,000.00 per year as declared on his federal income tax return (before income taxes, but after professional dues and equipment and other like expenses of his profession), plaintiff is awarded as child support, in addition to the $12,000.00 per year hereinabove provided for, one-half of the excess of said net income over $24,000.00 after deduction from said net income of an amount equal to the income tax attributable to such increase. 2
The district court in the instant case ordered modification of the support payments provision. The court deleted the provisions for supplemental child support money and substituted in its place an order that the defendant pay to plaintiff $185 per month child support for each child, to be increased to $200 per month per child when one of the children is no longer entitled to support payments.
The modification of divorce decrees is a matter of equity, and it is the duty and prerogative of this Court to review both the facts and the law. Humphreys v. Humphreys, Utah, 520 P.2d 193 (1974); King v. King, 25 Utah 2d 163, 478 P.2d 492 (1970); Utah Constitution, Art. VIII, § 9. However, it is likewise true that on review this Court will accord considerable deference to the judgment of the trial court due to its advantaged position and will not disturb the action of that court unless the evidence clearly preponderates to the contrary, or the trial court abuses its discretion or misapplies principles of law. Fletcher v. Fletcher, Utah, 615 P.2d 1218 (1980); Carter v. Carter, Utah, 563 P.2d 177 (1977); Watson v. Watson, Utah, 561 P.2d 1072 (1977); Eastman v. Eastman, Utah, 558 P.2d 514 (1976); Harding v. Harding, 26 Utah 2d 277, 488 P.2d 308 (1971).
A provision in a decree of divorce for child support and alimony may be modified by the district court pursuant to its continuing jurisdiction over the parties and the action. Section 30-3-5, Utah Code Ann. (1953), as amended. The burden rests with the party seeking modification to show a substantial change in circumstances such as to warrant a modification. Kessimakis v. Kessimakis, Utah, 580 P.2d 1090 (1978); Gale v. Gale, 123 Utah 277, 258 P.2d 986 (1953).
On February 17, 1978, less than three months after entry of the first order modifying the decree of divorce, the defendant filed the motion for modification of the decree at issue here. An affidavit in support thereof was supplemented by a second affidavit filed December 5, 1978.
The first affidavit alleged the following "substantial change of circumstances":
1. At the time the original decree was entered neither of the parties contemplated "that the defendant's income would increase 100% over a period of six years," which it had. The parties had contemplated that if defendant's income did increase "substantially, unpredictably and unforeseeably," that an adjustment in the computation of additional child support would be appropriate.
2. Because of increased costs of operation of defendant's dentistry practice, his profit margin has decreased even though his income has increased.
3. It was contemplated by the parties that plaintiff would after a "reasonable time" become employed, and she has not done so.
4. Subsequent to the divorce plaintiff remarried and then divorced again and realized a "substantial award" as a result, which neither of the parties had contemplated.
5. Defendant has remarried, which was contemplated, but has also fathered additional children, which was not contemplated.
6. Plaintiff has denied defendant his full visitation rights.
7. The cost of health and life insurance which defendant was required by the decree to keep in force has increased substantially in cost.
8. Subsequent to the divorce defendant purchased disability insurance for the benefit of his children.
The second affidavit sets forth the following additional changed circumstances:
1. Defendant's 1977 tax returns showed a significant reduction in his gross income as compared with his income before and subsequent to the divorce.
2. The proportion of net income realized by defendant has substantially decreased since the divorce.
3. The changed circumstances alleged in defendant's first affidavit had become "significantly more substantial" in the interim.
Hearings were had on defendant's motion to modify on January 23, 1979, and December 4, 1979. Defendant's testimony and that of his accountant were directed toward an analysis of defendant's profit as a percentage of gross income, net income after tax, spendable income, and percentage of net income going to plaintiff for child support and alimony. Testimony was also given to support the other allegations found in defendant's affidavit.
The only issue which we need address here is whether the evidence showed a sufficient change of circumstances to warrant the modification. The record demonstrates that defendant entered into a stipulation for child support which was incorporated into the original divorce...
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...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 ......
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Maughan v. Maughan
...the party seeking modification to show a substantial change in circumstances such as to warrant a modification." Christensen v. Christensen, 628 P.2d 1297, 1299 (Utah 1981). As in the modification of custody, we defer to the trial court's modification of a child support award. We will not u......
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...limitations, we are free to review both the facts and the law. Openshaw v. Openshaw, Utah, 639 P.2d 177, 178 (1981); Christensen v. Christensen, Utah, 628 P.2d 1297 (1981). Defendant Christine M. Wiese was divorced from her first husband in January of 1973. She knew she was then pregnant, b......
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Rohr v. Rohr
...trial court abused its discretion or misapplied principles of law. Openshaw v. Openshaw, Utah, 639 P.2d 177 (1981); Christensen v. Christensen, Utah, 628 P.2d 1297 (1981). In vesting the trial court with continuing jurisdiction over the parties to a divorce and issues arising thereunder, th......
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Utah Standards of Appellate Review
...be a basis for appeal, and if the appeal is taken, significantly assists the appellate court in its review. Christensen v. Christensen, 628 P.2d 1297, 1301 (Utah 1981). Furthermore, if the findings are legally inadequate the exercise of marshaling the evidence in support of the findings bec......
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Utah Standards of Appellate Review – Revised [1]
...basis for appeal exists, and, d the appeal is taken, significantly aid the appellate court in its review. See Christensen v. Christensen, 628 P.2d 1297,1301 (Utah 1981). If the findings are legally inadequate the exercise of marshaling the evidence supporting the findings becomes futile and......