Dana v. Dana, 880382-CA
| Decision Date | 30 March 1990 |
| Docket Number | No. 880382-CA,880382-CA |
| Citation | 789 P.2d 726 |
| Parties | Susan C. DANA, Plaintiff and Appellant, v. Bruce E. DANA, Defendant and Respondent. |
| Court | Utah Court of Appeals |
Lyle W. Hillyard (argued), Hillyard, Low & Anderson, Logan, for plaintiff and appellant.
Pete N. Vlahos (argued), F. Kim Walpole, Vlahos & Sharp, Ogden, for defendant and respondent.
Before GARFF, GREENWOOD and ORME, JJ.
Plaintiff Susan C. Dana appeals from the trial court's order granting defendant's petition to reduce child support payments and denying her petition to require defendant to either visit his children or to pay additional child support. We reverse in part and affirm in part.
Plaintiff and defendant were divorced in January 1983. Plaintiff was awarded custody of their three children. The court did not establish a visitation schedule because of the parties' desire to work out visitation without court involvement. Defendant was ordered to pay $165 in child support per child each month.
Although plaintiff earned approximately $3,000 by babysitting in her home during 1982, she was not employed outside the home during the parties' marriage or at the time of the divorce. The court anticipated, however, that plaintiff would find employment soon after the divorce and earn approximately $10,000 to $12,000 per year in gross income. At the time of hearing on the parties' cross petitions in 1987, plaintiff was earning approximately $17,000 per year in gross income.
Defendant remarried in 1983. He adopted the child of his new spouse and they later had a child of their own. Defendant also had three children from an earlier marriage, prior to his marriage to plaintiff. Consequently, defendant and his new spouse now have five children living with them. Defendant's gross income increased from $21,000 at the time of the divorce in 1982 to $31,300 in 1987. Defendant also receives $306 per month in social security benefits for the three children from his first marriage.
The parties dispute how frequently defendant has visited the three children in plaintiff's custody. Plaintiff testified that defendant rarely visited the children despite her encouraging him to visit regularly. Defendant testified that he visited the children more often than plaintiff maintains and that plaintiff's hostility impeded his efforts to spend more time with his children.
On November 6, 1986, plaintiff filed a petition to modify the decree of divorce, seeking to require defendant to either visit the children or pay more child support to compensate for the alleged loss of benefits plaintiff suffered from defendant's lack of visitation.
Defendant filed an answer and counter-petition to modify the divorce decree. Defendant claimed that his lack of visitation was because of his tight budget and the expenses of travelling long distance to see the children. He petitioned the court to reduce his child support payments on the basis of plaintiff's alleged substantial increase in income and his increased obligations, namely eight instead of six children to support.
Trial on the cross petitions for modification of the divorce decree was held on December 29, 1987. The trial court entered an order that encouraged visitation by defendant and established a specific visitation schedule. The court determined, however, that it could not force defendant to visit his children and thus declined to order defendant to either visit the children or pay extra child support.
The court also found that the increase in plaintiff's earnings from $3,000 to $17,000 per year, coupled with defendant's obligation to now support eight children rather than six, constituted a substantial change in circumstances. The court acknowledged that defendant's earnings had also increased but determined that the "emergency situation" of plaintiff being unable to work and earn adequate income because of her young children had terminated. The court reduced child support payments to $100 per child per month.
Plaintiff claims the trial court erred in (1) reducing defendant's child support payments, and (2) refusing to order defendant to either visit the children in plaintiff's custody or pay extra child support.
Pursuant to Utah Code Ann. § 30-3-5 (1989), the trial court has continuing jurisdiction to modify child support obligations. The party seeking modification has the burden to show a substantial change in the circumstances of at least one of the parties such as to warrant a modification. Jeppson v. Jeppson, 684 P.2d 69, 70 (Utah 1984); Christensen v. Christensen, 628 P.2d 1297, 1299 (Utah 1981). We will not overturn the trial court's modification of a child support award absent a clear abuse of discretion or manifest injustice. Maughan v. Maughan, 770 P.2d 156, 161 (Utah Ct.App.1989).
Plaintiff argues first that the trial court abused its discretion by (1) failing to define the substantial change in circumstances, and (2) considering defendant's obligation to support two children born or adopted subsequent to the divorce in finding a substantial change in circumstances. 1
We disagree with plaintiff on both points. First, the trial court entered findings of fact and conclusions of law that clearly define what it regarded as the substantial change in circumstances: plaintiff's increased income and the additional two children defendant is now obligated to support. Second, it was proper for the trial court to consider the two additional children that defendant is now obligated to support as one factor in determining whether a substantial change in circumstances has occurred. Openshaw v. Openshaw, 639 P.2d 177, 179 (Utah 1981).
We agree with plaintiff, however, that the court's ultimate conclusion that there was a substantial change in circumstances is erroneous. "Parties to a divorce decree will undoubtedly experience economic and other changes following a divorce, but a modification in the decree is justified only when a party shows a substantial change in circumstances." Lord v. Shaw, 682 P.2d 853, 856 (Utah 1984), rev'd on other grounds, Bailey v. Sound Lab Inc., 694 P.2d 1043, 1044 n. 1 (Utah 1984). In this case, while both parties have experienced economic change since the divorce decree, we find that defendant failed to meet his burden in showing a substantial change in circumstances.
The court's conclusion that plaintiff's increase of annual earnings from $3,000 in 1983 to $17,000 in 1987 constitutes a substantial change in circumstances is erroneous. It ignores defendant's testimony that, at the time of the divorce decree, the court anticipated plaintiff would increase her earnings from $10,000 to $12,000 shortly after the divorce, by finding outside employment. A change in circumstances reasonably contemplated at the time of divorce is not legally cognizable as a substantial change in circumstances in modification proceedings. Fullmer v. Fullmer, 761 P.2d 942, 947 (Utah Ct.App.1988)....
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