Christiansen v. Christiansen, Case No. 20010574-CA.
| Decision Date | 17 October 2003 |
| Docket Number | Case No. 20010574-CA. |
| Parties | Doreen Michelle Christiansen, Petitioner and Appellee, v. Kent Christiansen, Respondent and Appellant. |
| Court | Utah Court of Appeals |
Kent L. Christiansen, Provo, for Appellant.
James E. Slemboski, St. George, for Appellee.
Before Judges Jackson, Bench, and Greenwood.
Kent Christiansen (Husband) appeals from the trial court's Amended Findings of Fact and Conclusions of Law finalizing his divorce from Doreen Christiansen (Wife). Specifically, Husband appeals from the trial court's alimony award and property division. We affirm.
The trial court in this case made detailed findings of fact supporting its conclusions of law. The trial court found that Husband concealed assets, investments, and income from Wife, and that Husband's evidence concerning his earning capacity was not credible. These findings were based in part on the testimony of two former employees in his law firm. They testified that Husband received between $10,000 and $15,000 per month in gross receipts, in contrast to Husband's testimony that he received $3,200 per month in gross receipts. Further, the employees testified that Husband often did work on an exchange basis, yet Husband disclosed no clear records to account for this income. Husband failed to respond to Wife's discovery requests, despite having exclusive control over his business and financial records. The court also found that Husband had physically assaulted Wife on several occasions and bullied Wife about financial matters. Finally, the trial court found that Husband was not credible. These findings play a central role in the trial court's alimony award and property division. The court made additional findings, which are discussed in context below.
The trial court found that Wife did not work outside the home during the marriage, but stayed home with the parties' four children. The court also found that Wife did not complete a college degree and was earning approximately $1,131 per month at the time of trial; that Wife lacked "training or experience in order to obtain better paying work"; that the standard of living she enjoyed during marriage was much higher than that which she enjoyed at the time of trial. Additionally, the court found that Wife's stated expenses were reasonable to meet her needs, and that Husband had the ability to provide support.
Husband appeals the trial court's alimony award, objecting to the imputation of income, the continuation of alimony beyond remarriage, and the amount of the award. He also appeals the property distribution. "Trial courts have considerable discretion in determining alimony and property distribution in divorce cases, and will be upheld on appeal unless a clear and prejudicial abuse of discretion is demonstrated." Howell v. Howell, 806 P.2d 1209, 1211 (Utah Ct. App. 1991).
The trial court imputed a monthly income of $6,000 to Husband. While gross income is usually established by proof of current income, a court may impute income in specific circumstances, after making the threshold finding that a party is voluntarily underemployed. See Utah Code Ann. § 78-45-7.5(5)(b)-(c), (6), (7)(a) (2002); see also Reinhart v. Reinhart, 963 P.2d 757, 758 (Utah Ct. App. 1998). Once the threshold finding is made the court then determines the amount to impute based upon statutory factors. See Utah Code Ann. § 78-45-7.5(7)(b).
The trial court found, based upon the facts discussed above, that the income figures Husband presented to the court were not trustworthy. The findings also make clear that the court considered the statutory factors. Therefore, the trial court did not abuse its discretion when it imputed income to Husband.
Next, Husband appeals the conclusion that Wife's alimony award was not to terminate for five years following her remarriage. A trial court has the discretion to continue an alimony award after the receiving spouse's remarriage. "Unless a decree of divorce specifically provides otherwise, any order of the court that a party pay alimony to a former spouse automatically terminates upon the remarriage of that former spouse." Utah Code Ann. § 30-3-5(9) (1998) (emphasis added). The trial court specifically provided that the alimony award was not to terminate for five years after Wife's remarriage. This finding was based on Wife's low income potential because she stayed home to raise the family during the marriage.
The grant of alimony beyond remarriage was not based on Wife's contribution to Husband's education and law degree, as Husband argues. Professional degrees are not marital property subject to division, and a trial court cannot use alimony as a "de facto division of the professional degree or license." Johnson v. Johnson, 855 P.2d 250, 252-53 (Utah Ct. App. 1993); see also Martinez v. Martinez, 818 P.2d 538, 542 (Utah 1991) (). The trial court considered factors other than Husband's law degree, including the statutory factors to be considered in determining alimony. See Utah Code Ann. § 30-3-5(7)(a)(i)-(iv) (1998).(1) These statutory factors include the payor spouse's income. See id.
In addition, the court considered Husband's fault in reducing the parties' marital estate and in inaccurately reporting his income and expenses. "The court may consider the fault of the parties in determining alimony." Utah Code Ann. § 30-3-5(7)(b). Considering the fault of a party is distinct from punishing a party based on fault. See Davis v. Davis, 2003 UT App 282,¶9 n.1, 479 Utah Adv. Rep. 6. In this case, the trial court made sufficient findings, based on the evidence presented, to support the alimony award. Husband's argument that the alimony award is a "penalty" imposed on him, and a "reward" given to Wife, is not supported by the trial court's findings. Fault may correctly be considered by the trial court without penalizing the party found to be at fault. Accordingly, the trial court's award of alimony to continue for five years after Wife's remarriage is not an abuse of discretion.
Husband's final objection to the alimony award is that it exceeds Wife's established need. "[T]he spouse's demonstrated need must . . . constitute the maximum permissible alimony award." Bingham v. Bingham, 872 P.2d 1065, 1068 (Utah Ct. App. 1994)....
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