Gore v. Grant, 20130871–CA.

Citation2015 UT App 113,349 P.3d 779
Decision Date30 April 2015
Docket NumberNo. 20130871–CA.,20130871–CA.
PartiesAnn GORE, Petitioner and Appellant, v. Horace GRANT, Respondent and Appellee.
CourtCourt of Appeals of Utah

Lincoln Harris and Zachary E. Peterson, Salt Lake City, Attorneys for Appellant.

Aaron B. Millar, Salt Lake City, Attorney for Appellee.

Judge STEPHEN L. ROTH authored this Opinion, in which Judges JOHN A. PEARCE and KATE A. TOOMEY concurred.

Opinion

ROTH, Judge:

¶ 1 Ann Gore (Mother) challenges the district court's order modifying the child support agreement she entered into with Horace Grant (Father). First, she contends that modification of the support order is unjust, inappropriate, and not in the best interest of the parties' child. Second, she asserts that the district court did not have the authority to order her to pay Father a $1,700 security deposit. Finally, she appeals from the denial of her requests for attorney fees. We affirm the district court's order on the security deposit but reverse and remand for further proceedings on the other two issues. We decline to award Mother the attorney fees she incurred on appeal.

BACKGROUND

¶ 2 Mother and Father have one daughter (Daughter), who was born in January 1996. In fall 1997, the parties entered into an agreement governing Father's support obligations to Daughter throughout her minority (the Agreement). The Agreement initially required Father to pay child support in the amount of $3,000 per month. Then, beginning in January 1998, the “monthly amount of Child Support shall be increased by three percent (3%) on January 1 of each calendar year.” An attachment to the Agreement details the amount of Father's support obligation, year by year, from 1996 through 2013 when his monthly child support obligation would be $4,812.1 The parties do not appear to have taken Utah's child support statute into account in establishing these amounts, and, indeed, Father's monthly child support obligation was well above the highest single-child support obligation designated by Utah guidelines at the time.2 Utah Code Ann. § 78–45–7.14 (Michie 1996) (setting the highest child support obligation amount for one child at $826 per month). In total, the Agreement obligated Father to pay about $850,000 in child support. He also agreed to be responsible for “all reasonable expenses for [Daughter's] medical, dental, orthodontic, psychological or psychiatric care,” when those expenses were not covered by insurance. The Agreement further required Father to purchase a residence in Utah for Mother and Daughter to reside in rent-free until the support obligation ended. Father was responsible for “all major structural repairs” to the home, while Mother was to perform “routine maintenance and repair.” The Agreement was registered and approved by a Pennsylvania court in December 1997.

¶ 3 At the time, Father was employed as a professional basketball player for the National Basketball Association (NBA). His NBA career began in 1987 and lasted seventeen seasons (ten before execution of the Agreement and seven after). In 1997, the year the Agreement was executed, Father earned nearly $14.3 million—about $1.19 million per month—from salary alone. Over the next seven seasons, Father earned nearly $27 million more—an average of $3.85 million per year in salary, with his lowest salary for any one year being $583,267. Father retired after the 2004 season and received an additional $2.5 million in deferred compensation. From his retirement through fall 2010, Father remained unemployed and lived solely on his previous earnings. During those years, Father also “lost substantial sums of money from investments and failed business ventures.” In late 2010, Father began doing promotional engagements for the NBA. In total, between 1996, the year Daughter was born, and 2011, the year Father moved to modify child support, Father had earned $46.5 million in salary from the NBA. At the time of trial in May 2013, Father was earning $124,000 a year, or $10,352 a month, for his promotional appearances, which took up less than seven weeks per year. Since Daughter's birth, Mother has earned only minimal income from songwriting and a self-owned business. Both parties testified that when they entered the Agreement, they expected that Mother would not seek full-time employment but instead would stay at home to care for Daughter until her majority.

¶ 4 From 1997 through 2008, Father complied with the Agreement. He purchased a home for Mother and Daughter in Utah and kept current with his child support obligation. In 2009, Father began reducing his monthly support payments. Over the next three years, he typically paid just $3,000 per month, which, in 2009, was about $1,200 less than what he was obligated to pay under the Agreement and by 2011 resulted in a $1,500 monthly deficit. In November 2011, Father filed a petition to modify the Agreement to reduce his monthly child support obligation to $733, an amount Father asserted was consistent with the Utah child support guidelines for persons with the parties' then-current incomes, and to rescind his obligation to provide a home for Mother and Daughter so that he could sell the house to pay off his child support arrearages. Father argued that his circumstances met the threshold requirements for modification under Utah law, both because the child support amount had not been modified within the last three years and because there had been a change of 30% or more in Father's income so as to result in a difference of 15% or more between the support amount due and the amount required by the child support guidelines. See Utah Code Ann. § 78B–12–210(8)(9) (LexisNexis 2012).3

¶ 5 Father's motion for temporary orders reducing his child support payments was denied, but he continued to pay less than his obligation under the Agreement. With the assistance of the Office of Recovery Services and the contempt power of the district court, Mother eventually recovered the child support arrearages. The district court deemed its contempt order against Father purged after he paid his overdue child support in full.

¶ 6 Following a one-day trial in May 2013, the district court granted Father's petition to modify. The court concluded that a reduction in child support was warranted because Father had experienced a substantial, non-temporary reduction in annual income from $14 million at the peak of his career in 1997 to $124,000 in 2013. The court found that Father was “no longer capable of working as a professional basketball player due to age and physical injuries” and that without any “discernible specific education, training, or skills qualifying him for employment,” Father had no ability to obtain employment other than the kind of promotional appearances he was already doing. The court further found that Father was “accept[ing] and appear[ing] at as many such promotional opportunities as reasonably possible and available” and that he did not have “any other perceptible opportunity to recoup or restore a higher level of income.” From these statements, it appears that the district court determined that Father was not voluntarily underemployed. The court also found that Father's income was insufficient “by several thousands of dollars” to cover his household's monthly expenses of $26,000.4 Ultimately, the district court concluded that because there was a substantial and material change in Father's income that resulted in his child support obligation under the Agreement being approximately 80% higher than his obligation under the Utah child support guidelines, it was appropriate to adjust his child support obligation downward. See id. § 78B–12–210(9). Applying the statutory guidelines, the court reduced Father's child support obligation from more than $4,500 per month under the Agreement to $1,011 per month.5 The court made the modification retroactive to December 2011. As a result, the court determined that Father had actually overpaid child support by approximately $24,000 to date. Thus, the court ordered “that the $24,014 overpayment be applied as a credit against [Father's] future monthly child support payments” and authorized Father to “request entry of a judgment against [Mother] in the amount [of] his overpayment” after the child support obligation terminated.

¶ 7 With respect to Father's request that he be released from his obligation to provide Mother and Daughter with a home, the court concluded that “it is fair and equitable that the requirements of the [Agreement] pertaining to the Utah House continue” until the termination of child support. The court, however, found merit in Father's claim that Mother had failed to maintain the home as required by the Agreement. As a consequence, it ordered Mother to pay Father “a security deposit for the Utah House in the amount of $1,700, the equivalent of one month's rent.” This deposit was to be “applied to the reasonable costs of cleaning and repairing the Utah House upon its vacation by [Mother] and/or [Daughter] with [a]ny unused portion” to be “refunded to [Mother].”

¶ 8 Finally, the court denied Mother's requests for attorney fees. It reasoned that Father, not Mother, was the prevailing party and that Mother had not demonstrated a need for fees and costs. The court also determined that there was no basis for an “imposition of sanctions against [Father,] due to the purging of his contempt.”

¶ 9 Mother appeals from the district court's decisions reducing child support, ordering that she pay Father a security deposit to live in the Utah home, and denying her requests for attorney fees.

ISSUES AND STANDARDS OF REVIEW

¶ 10 Mother challenges the district court's decision to modify Father's child support obligations. Ordinarily, [i]n reviewing child ... support proceedings, we accord substantial deference to the trial court's findings and give it considerable latitude in fashioning the appropriate relief.” Diener v. Diener, 2004 UT App 314, ¶ 4, 98 P.3d 1178 (omission in original) (citation and...

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    ...§ 30-3-3(1) (LexisNexis 2013). This court has considered actions to modify alimony to fall within this provision. See, e.g. , Gore v. Grant , 2015 UT App 113, ¶¶ 25, 31, 349 P.3d 779 ("The modification proceedings ... involved a request to modify child support, in other words, to establish ......
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