Davis v. Davis

• Decision Date: 09 September 2011
• Docket Number: No. 20100238–CA.,20100238–CA.
• Citation: 263 P.3d 520,2011 UT App 311,690 Utah Adv. Rep. 37
• Parties: Lisa DAVIS, Petitioner, Appellee, and Cross-appellant,v.Corey G. DAVIS, Respondent, Appellant, and Cross-appellee.
• Court: Utah Court of Appeals

263 P.3d 520

690 Utah Adv. Rep. 37

2011 UT App 311

Lisa DAVIS, Petitioner, Appellee, and Cross-appellant,

v.Corey G. DAVIS, Respondent, Appellant, and Cross-appellee.

No. 20100238–CA.

Court of Appeals of Utah.

Sept. 9, 2011.

David R. Hartwig, Salt Lake City, for Appellant.Steve S. Christensen, Lisa B. Thornton, and Christopher J. Rogers, Salt Lake City, for Appellee.Before Judges DAVIS, THORNE, and CHRISTIANSEN.

OPINION

DAVIS, Presiding Judge:

¶ 1 Corey G. Davis appeals several aspects of the trial court's ruling on Lisa Davis's 2008 petition to modify the parties' divorce decree. Lisa cross-appeals, challenging the trial court's ruling on her request for attorney fees and requesting fees on appeal. We affirm in part and reverse in part.

BACKGROUND

¶ 2 The parties were divorced by a Decree of Divorce entered May 23, 2002. Corey, whose gross monthly income was $7,000 per month at the time, was ordered to pay Lisa child support of $1,511 per month and was assigned to pay a number of marital debts. The decree also provided that Lisa would be entitled to claim the youngest child for tax purposes, that Corey would be entitled to claim the middle child, and that the parties would alternate claiming the third child (the income tax provision). Furthermore, the decree adopted provisions in accordance with the Utah Code, see Utah Code Ann. § 78B–12–212(8)–(9) (Supp.2011),¹ regarding payment of the children's health care expenses, which ordered that “[e]ach party who incurs medical expenses for the children shall provide written verification of the cost and payment of medical expenses to the other within thirty days of payment” and provided that “[a]ny party who fails to comply with the ... notice provision[ ] may be denied the right to ... recover the other parent's share of the expenses.”

¶ 3 In October 2002, after losing his job, Corey filed a petition to modify the decree. Lisa filed an answer and a counterpetition to modify in November 2002. In 2003, Corey declared bankruptcy. The trial court ruled on the parties' petitions in October 2005 (the 2005 modification). The trial court found that Corey was out of a job between October 2002 and October 2003 and that his new income upon becoming re-employed was $5,026 per month. The trial court found that the decrease of approximately 29% in Corey's monthly income constituted “a significant and material change of circumstances ... justifying the [c]ourt reviewing the child support ... obligations.” The trial court also found that Corey had “received a discharge in bankruptcy in regard to the debts and obligations he was ordered to pay under the Decree of Divorce” but made no findings as to the effect of that discharge. The trial court imputed minimum wage of $940 per month to Lisa and determined that Corey's child support obligation should be reduced to $1,174 per month, retroactive to October 2003. In recognition of the fact that Corey was “the primary financial contributor to the cost of raising the children,” the trial court also modified the income tax provision so that Corey would claim the youngest child and Lisa would claim the middle child.²

¶ 4 In March 2008, Lisa filed a new petition to modify, alleging several changes in circumstances: (1) that as a result of the bankruptcy, Corey was no longer paying the debts as ordered in the divorce decree, (2) that Lisa's credit had been negatively affected by Corey's failure to pay the debts, (3) that Lisa had incurred new expenses for the children's activities and school fees, (4) that Lisa had a greater need to claim the children as dependents for tax purposes than Corey, and (5) that Lisa wanted to purchase a home. Lisa requested an order modifying the income tax provision to permit her to claim all of the children for tax purposes; requiring Corey to pay for half of the children's extracurricular, school registration, and test fees; and ordering Corey to pay her attorney fees. In November 2009, Lisa filed an amended petition to modify, requesting an increase in child support.

¶ 5 Following a hearing on January 28, 2010, the trial court found that a substantial change of circumstances had occurred in that “the bankruptcy of [Corey] has materially affected the financial condition of [Lisa]”:

This court finds that [Corey] has declared bankruptcy and that by virtue of that bankruptcy filing, the creditors are now seeking to recover funds from [Lisa].... The court finds that the initial decree provided that [Corey] would pay for certain debts. The court finds that those debts have not been paid. The court therefore finds that although bankruptcy was a right [Corey] could and did invoke, that by so doing he has effectively taken from [Lisa] the benefit of her bargain in arriving at the stipulation which forms the basis of the original decree.

As a result of this change, the trial court again modified the decree (the 2010 modification) and determined that Lisa “should be able to claim all the tax exemptions for all the children,” acknowledging that this was the “only remedy sought” by Lisa for Corey's failure to pay the marital debts. The trial court also found “that the parties['] incomes have changed significantly” and, on the basis of the parties' new incomes, increased child support from $1,174 per month to $1,287 per month. Next, the trial court found that “issues of school expenses have arisen that did not exist when the decree was entered” and, accordingly, modified the divorce decree “to require [Corey] to reimburse [Lisa] for one half of reasonable school expenses.” Furthermore, the trial court stated that claims for reimbursement of medical expenses would be waived if the party claiming reimbursement failed to provide proof within thirty days that the bill had been incurred but that it would be unnecessary for a party to show that the bill had actually been paid in order to receive reimbursement. Finally, the trial court denied Lisa's request for attorney fees.³ Corey appeals the trial court's modification of the income tax provision, its adjustment of child support, its order regarding school expenses, and its orders regarding medical reimbursement. Lisa cross-appeals the trial court's decision on attorney fees and requests fees on appeal.

ISSUES AND STANDARDS OF REVIEW ⁴

¶ 6 First, Corey argues that in determining whether to modify the income tax provision, the trial court was limited by res judicata to considering only changes in circumstances occurring since the 2005 modification.⁵ “A trial court's determination of whether res judicata bars an action presents a question of law. We review such questions for correctness, according no particular deference to the trial court.” Busch v. Busch, 2003 UT App 131, ¶ 5, 71 P.3d 177 (internal quotation marks omitted). Furthermore, Corey asserts that the bankruptcy and its financial effects on Lisa could not be used as evidence that a substantial change of circumstances had occurred since the 2005 modification. When “presented with a question of law regarding what constitutes a substantial change of circumstances, [we] review[ it] for correctness.” Toone v. Toone, 952 P.2d 112, 114 (Utah Ct.App.1998).

¶ 7 Second, Corey contends that the trial court made a legal error by modifying his child support obligation when the difference between the new and old awards was less than 10% and by making the award retroactive to a date prior to the date Lisa requested the modification. “We review the trial court's legal determinations regarding [a party]'s entitlement to child support modification for correctness.” Doyle v. Doyle, 2009 UT App 306, ¶ 9, 221 P.3d 888. However, “[t]o preserve an issue for appellate review, a party must first raise the issue in the trial court, giving that court an opportunity to rule on the issue.” Searle v. Searle, 2001 UT App 367, ¶ 17, 38 P.3d 307 (internal quotation marks omitted).

¶ 8 Third, Corey argues that the trial court erred by analyzing the question of whether he should be ordered to pay a share of the children's school expenses as a separate issue from child support. He argues that the trial court therefore exceeded its discretion by ordering him to pay for half of the children's school expenses in addition to child support without making a specific finding that a deviation from the child support guidelines was appropriate. “Questions about the legal adequacy of findings of fact and the legal accuracy of the trial court's statements present issues of law, which we review for correctness, according no deference to the trial court.” In re C.K., 2000 UT App 11, ¶ 17, 996 P.2d 1059.

¶ 9 Fourth, Corey argues that the trial court acted contrary to Utah law by ordering that the parties need not provide one another with proof of payment in order to receive reimbursement from the other party for medical expenses incurred on behalf of the children. “[A] trial court's interpretation of a statute is a question of law that we review for correctness.” Blackner v. Department of Transp., 2002 UT 44, ¶ 8, 48 P.3d 949.

¶ 10 In her cross-appeal, Lisa asserts that the trial court failed to make adequate findings in support of its decision to deny her request for attorney fees. She also contends that she is entitled to fees on appeal. “Trial courts have broad discretion in ... awarding attorney fees. Where the trial court may exercise broad discretion, we presume the correctness of the court's decision absent ... a clear abuse of discretion.” Mark v. Mark, 2009 UT App 374, ¶ 7, 223 P.3d 476 (omissions in original) (internal quotation marks omitted).

ANALYSIS

I. Res Judicata and Tax Exemptions

¶ 11 Corey argues that because the income tax provision was modified in 2005, Lisa's attempt to modify it in 2008 based on a change of circumstances arising from the 2003 bankruptcy was barred by the claim preclusion branch of res judicata, which “precludes the relitigation of all issues that could have been litigated as well as those that were, in fact,...