Fish v. Fish

• Decision Date: 21 October 2010
• Docket Number: No. 20090916-CA.,20090916-CA.
• Parties: Diane FISH, Petitioner and Appellee, v. Jeffery J. FISH, Respondent and Appellant.
• Court: Utah Court of Appeals

242 P.3d 787

Diane FISH, Petitioner and Appellee,

v.Jeffery J. FISH, Respondent and Appellant.

No. 20090916-CA.

Court of Appeals of Utah.

Oct. 21, 2010.

Robert L. Neeley, Ogden, for Appellant.

Timothy W. Blackburn and William A. Street, Ogden, for Appellee.

Before Judges McHUGH, ORME, and VOROS.

OPINION

McHUGH, Associate Presiding Judge:

¶ 1 Jeffrey J. Fish (Husband) appeals from the trial court's award of alimony to Diane Fish (Wife). We reverse and remand.

BACKGROUND

¶ 2 Husband and Wife were married September 5, 1980. Husband joined the United States Air Force shortly before the parties' marriage in June 1980 and retired in August 2000 with a 30% disability rating for low back strain, sinus problems, and eczema. At the time of his retirement, Husband was making $38,000 per year doing multimedia work relating to training for the military. After retiring, Husband earned $27,000 per year as an aircraft mechanic between September 2000 and October 2001, earned $3,333-$3,800 per month as a logistics specialist between October 2001 and May 2003, had no income between May 2003 and April 2006, and earned $25,382 per year as an aircraft mechanic between April 2006 and September 2007. Husband quit his aircraft mechanic job in September 2007 to start a lawn care business, but his plans failed. Husband also worked briefly at a plastics company in 2006 or 2007, training to become the plant manager. Although his starting salary was $16-$17 per hour, the former plant manager, who was making $120,000 per year when he retired, testified that Husband could have made $60,000-$80,000 per year once he became the plant manager. However, Husband quit his job at the plastics company after only five days because he did not like the company's owner.

¶ 3 Shortly after Husband quit his aircraft mechanic job in 2007, Wife filed for divorce. Husband's first attorney¹ suggested that he see a physician with the Department of Veterans Affairs (VA) to obtain a referral from his Air Force doctor to a physical therapist for a functional capacity evaluation. The physical therapist concluded that Husband was not physically able to continue working as an aircraft mechanic due to back and foot problems. The physical therapist had been acquainted with Husband and Wife when they lived in California but testified that he had not seen them for "six or eight years" prior to performing the evaluation. Although the physical therapist testified that he did not know about the divorce when he performed the evaluation and that his friendship with Husband and Wife did not affect his conclusions, he admitted on cross-examination that he "probably should have" referred Husband to another physical therapist to perform the evaluation.

¶ 4 The results of the functional capacity evaluation qualified Husband for vocational rehabilitation through the VA. At the time of trial, Husband was unemployed and attending technical college to become a computer technician. Husband estimated that he could make approximately $9 per hour as a computer technician, which would result in a full-time salary of $18,720 per year.

¶ 5 Because he was unemployed between the time of the parties' separation and the time of trial, Wife requested that Husband undergo a vocational assessment by a specialist to determine his earning potential. The vocational specialist testified that she did not believe that Husband's back and footproblems prevented him from working full-time as an aircraft mechanic at a salary of $43,030-$55,720 per year. The vocational specialist concluded that Husband was also qualified to work as a sales representative with a salary of $28,330-$53,690 per year or as a logistics specialist with a salary of $24,432-$57,709 per year. The vocational specialist further testified that there were a significant number of local jobs available in each of these areas.

¶ 6 Two of Husband and Wife's friends also testified that Husband had helped them in recent years with physically demanding tasks such as moving railroad ties, laying sod, installing electrical cables, and lifting hay bales. They also testified that he had participated with them in various recreational activities such as boating, jet skiing, and tubing, all without complaining of back pain.

¶ 7 Wife works as an office manager at a dentist's office and makes $15 per hour; she currently works part-time. Wife testified at trial that she has a high school diploma and attended technical college for medical assisting. She also stated that she was looking for a full-time job at the time of trial, that she was willing to change jobs to obtain employer-provided medical insurance, and that she did not believe it was "unreasonable to say that [she was] able to work 40 hours a week."

¶ 8 The trial court found that the physical therapist's testimony was "suspect because he was a close friend of [Husband] for many years." Considering the testimony that Husband had participated in several physically demanding activities without complaint and the testimony of the vocational specialist that Husband "could earn between $24,000 and $57,000 each year," the trial court found that Husband was "capable of working full-time," that he was "underemployed," and that he should be imputed "income in a sum between $30,000 and $40,000 annually." The trial court found that Husband received $1,703 retirement pay from the military each month, of which $421 was disability pay, ² and that at the time of trial Husband was receiving $671 per month for vocational rehabilitation. The trial court also found that Husband's claimed expenses of $2,374 per month were reasonable.

¶ 9 In addition, the trial court found that Wife had earned $25,000 per year gross and $1,628 per month net income in 2008, and that she had an average gross monthly income of $2,000 during the first four months of 2009. The court found that Wife's claimed monthly expenses of $3,500-$3,600 were slightly excessive but concluded that $3,000 per month was reasonable. The court also determined that the parties' tax returns for the past seven years demonstrated that they "are capable of earning a reasonable income."

¶ 10 The trial court concluded that both parties had the ability to work and earn income but that Wife has a need for alimony. Based on its findings and conclusions, the court awarded Wife alimony of $800 per month for twenty-seven years, the length of the marriage.

ISSUES AND STANDARD OF REVIEW

¶ 11 Husband argues that the trial court erred in failing to impute income to Wife, in imputing a yearly income of $30,000-$40,000 to him, and in calculating the amount of alimony. "We review a trial court's award of alimony for an abuse of discretion" and "will not disturb a trial court's ruling on alimony as long as the court exercises its discretion within the bounds and under the standards we have set and has supported its decision with adequate findings and conclusions." Connell v. Connell, 2010 UT App 139, ¶ 5, 233 P.3d 836 (internal quotation marks omitted).

ANALYSIS

¶ 12 In fashioning an alimony award, the trial court is required to consider the payor spouse's ability to pay and the recipient spouse's need and ability to produce income.³SeeUtah Code Ann. § 30-3-5(8)(a)(i)-(iii) (Supp.2010).⁴ Furthermore, the award should advance, as much as possible, the purposes of alimony by assisting the parties in achieving the same standard of living they enjoyed during the marriage, equalizing the parties' respective standards of living, and preventing either spouse from becoming a public charge. See Jensen v. Jensen, 2008 UT App 392, ¶ 9, 197 P.3d 117.

¶ 13 Although the trial court did not exceed its discretion by concluding that Husband had the ability to work, the trial court's findings are inadequate to support the salary range imputed to Husband. Furthermore, the low end of that range does not support the trial court's conclusion that Husband had the ability to pay Wife $800 per month in alimony. The trial court's findings were also insufficient concerning Wife's ability to produce income. However, we see nothing in the record to support Husband's claim that the trial court improperly ignored the parties' standard of living during the marriage in calculating their ongoing needs.

I. Imputation of Income to Husband and Husband's Ability to Pay

¶ 14 When determining the appropriate amount of alimony, a trial court must make findings as to "the ability of the payor spouse to provide support." Utah Code Ann. § 30-3-5(8)(a)(iii). In doing so, "[a] court may impute income to an underemployed spouse." Connell, 2010 UT App 139, ¶ 16, 233 P.3d 836. Utah Code section 78B-12-203 provides that imputed income "shall be based upon employment potential and probable earnings as derived from employment opportunities, work history, occupation qualifications, and prevailing earnings for persons of similar backgrounds in the community, or the median earning for persons in the same occupation in the same geographical area." Utah Code Ann. § 78B-12-203(7)(b) (2008).⁵

¶ 15 Husband makes three challenges to the trial court's imputation of income to him. First, Husband argues that the trial court erred in determining that he was capable of working full-time as an aircraft mechanic or in a similarly compensated occupation. Second, he claims that the trial court erred in imputing income to him despite the fact that he is currently attending technical school. See generally id. § 78B-12-203(7)(d)(iii) (precluding a trial court from imputing income to an individual who is "engaged in career or occupational training to establish basic job skills"). Third, Husband contends that the trial court's findings do not support the conclusion that he has the ability to pay Wife $800 per month. We consider each of Husband's arguments in turn.

A. The Trial Court Did Not Err in Concluding that Husband Is Capable of Earning a Reasonable Income.

¶ 16 Contrary to Husband's assertions, the evidence presented at trial supports the trial court...