Griffith v. Griffith

• Decision Date: 04 June 1998
• Docket Number: No. 970123-CA,970123-CA
• Citation: Griffith v. Griffith, 959 P.2d 1015 (Utah App. 1998)
• Parties: 344 Utah Adv. Rep. 3 Janna GRIFFITH, Plaintiff and Appellant, v. David Gary GRIFFITH, Defendant and Appellee.
• Court: Utah Court of Appeals

Page 1015

959 P.2d 1015

344 Utah Adv. Rep. 3

Janna GRIFFITH, Plaintiff and Appellant, v.David Gary GRIFFITH, Defendant and Appellee.

No. 970123-CA.

Court of Appeals of Utah.

June 4, 1998.

J. Franklin Allred, Salt Lake City, for Plaintiff and Appellant.

Robert M. McDonald, Salt Lake City, for Defendant and Appellee.

Before WILKINS, BILLINGS and JACKSON, JJ.

OPINION

BILLINGS, Judge:

AppellantJanna Griffith appeals the trial court's decision in a divorce case setting alimony, dividing marital property, and imposing attorney fees against her.We affirm.

FACTS

Janna Griffith(wife) filed for divorce from David Griffith(husband) on September 14, 1994.On June 3, 1996, the court issued a decree terminating the marriage and reserving adjudication of all other issues incident to the divorce.The case initially came before Judge John A. Rokich of the third district.However, on the second day of trial Judge Rokich recused himself in response to statements made by wife's attorney.At the same hearing, Rokich found that wife's attorney had acted in bad faith to delay the trial and manipulate the court by waiting until the second day of trial before questioning Judge Rokich's impartiality.After Rokich's recusal, Judge Leon Dever tried the case.Wife now appeals.We discuss the factual details in our analysis of the multiple issues raised on appeal.

ANALYSIS

Wife raises six issues in her appeal of the trial court order.First, wife argues the court erred in setting husband's income for purposes of alimony and child support.Second, she argues the trial court failed to consider the required factors in setting her alimony.Third, she argues the court erred in its division of marital property.Fourth, she argues the court erred in not awarding her attorney fees.Fifth, she argues Judge Rokich erred in awarding husband attorney fees after he had recused himself.Finally, she argues Judge Dever erred in imposing Rule 11 sanctions and attorney fees on her because of her motion to disqualify husband's attorney.

I.Did the Court Err in Determining Husband's Income?

Wife argues the court should have considered husband's side job income, use of a company car, and recent annual bonuses in setting his income for purposes of child support and alimony."[W]hen determining an alimony award, 'it is appropriate and necessary for a trial court to consider all sources of income that were used by the parties during their marriage to meet their self-defined needs, from whatever source--overtime, second job, self-employment, etc., as well as unearned income.' "Breinholt v. Breinholt, 905 P.2d 877, 880(Utah Ct.App.1995) (quoting Crompton v. Crompton, 888 P.2d 686, 690(Utah Ct.App.1994).A court may impute income to a parent for purposes of calculating alimony and child support.SeeHill v. Hill, 869 P.2d 963, 965(Utah Ct.App.1994).However, the goal of imputing income is to prevent parents from reducing their child support or alimony by purposeful unemployment or underemployment.Seeid. at 965.Thus, a court may not impute income to a parent "unless the parent either stipulates to the amount imputed or there is a hearing in which the finding is made that the parent is voluntarily unemployed or underemployed."Id.

A.Side Jobs

Husband is employed full-time by Christiansen and Griffith (C & G), a business partially owned by his father.Before the divorce, husband regularly supplemented the couple's income by performing C & G-related side-jobs in addition to his regular work.Most of the side-job income went to renovate the family home.By the time of trial, husband was no longer performing these side-jobs.

Wife cites several cases in which courts have considered income from side jobs, second jobs, or overtime.However, all these cases are distinguishable from the present case.For example, in Breinholt, 905 P.2d at 881, we held that a husband who was a businessman and a county commissioner should pay alimony based on his total income, rather than his business income alone.In Jensen v. Bowcut, 892 P.2d 1053, 1057(Utah Ct.App.1995), we upheld consideration of second-job income to calculate alimony and child support where a physician drew substantial income from a county contract that the trial court found was an integral part of his medical practice rather than a separate job.In Hurt v. Hurt, 793 P.2d 948, 950(Utah Ct.App.1990), we upheld a trial court decision to include historic overtime in a husband's income even though he argued that his overtime was likely to decline in the future because we concluded that the trial court had appropriately assessed the husband's income at the time of trial and that he could request modification of alimony and child support if his overtime did in fact decline in the future.In Hill, 869 P.2d at 965, the supreme court imputed income to a husband where it found that he was voluntarily underemployed and the husband himself had conceded that imputing income was appropriate.

In this case, the court declined to impute husband's historic side-job income for the following reasons: (1) the couple finished renovating their home shortly before the separation and no longer needed the side-job income; (2) husband's father had accepted a local government position, and husband was now performing C & G work that had once been done by his father; and (3) husband's older brother, also a C & G employee, had been diagnosed with leukemia, and husband had taken over many of his duties.The court based this refusal on the following specific findings of fact: 1) husband had stopped performing the side-jobs before the couple separated and was unlikely to perform them again in the future; 2) husband worked fifty hours a week at a demanding job, and thus was not underemployed; 3) C & G appropriately compensated husband for full time work; and 4) husband's extra work was done to keep the family business viable and thus was not evidence of voluntary underemployment.In light of these findings, the court was clearly within its discretion in refusing to impute historic side-job income in setting child support and alimony.

B.Use of the Company Car

Wife also argues the trial court failed to consider the income value of husband's use of a C & G company car because the court refused to hear an expert witness on this issue.Wife's attorney failed to notify opposing counsel that he would call this witness, and therefore the trial court refused to allow the witness to testify.

We will not reverse a trial court's determination on the admissibility of evidence absent an abuse of discretion impacting a party's substantive rights.It is not an abuse of discretion for a trial court to refuse to admit "evidence which is not timely provided to the opposing party contrary to the court's instruction."

Hill v. Dickerson, 839 P.2d 309, 311(Utah Ct.App.1992)(citations omitted)(upholding trial court's refusal to admit expert witness because appellant failed to produce witness by date on which court ordered both parties to exchange final witness lists).

In this case, the trial court's discovery order clearly required the parties to exchange final witness lists by July 26.In response to this order, wife's attorney provided a final list of witnesses that did not include a car expert.However, on the second day of trial, he tried to call a car expert to testify about the income value of the husband's use of the company car.Wife has produced no evidence of any special circumstances justifying the failure to timely provide a complete list of witnesses or to supplement the list with the names of new witnesses.Thus we conclude the court was well within its discretion to prohibit the unannounced introduction of this evidence.

C.Bonus Income

Wife also argues the court should have calculated husband's income based solely on the recent years he received a C & G company bonus.She argues the court underestimated husband's annual income when it averaged the last five years instead of excluding non-bonus years.

Alimony and child support is appropriately calculated based on earnings at the time of trial.SeeThronson v. Thronson, 810 P.2d 428, 435(Utah Ct.App.1991).However, trial courts have broad discretion to select an appropriate method of assessing a spouse's income, and we will not overturn a trial court's alimony award absent a clear and prejudicial abuse of discretion.SeeHowell v. Howell, 806 P.2d 1209, 1211(Utah Ct.App.1991).

In this casethe trial court found that husband's receipt of a bonus depended entirely on the profitability of C & G over the course of a given year, and that his bonus income had ranged from $15,000 to zero over the past five years.No evidence at trial established that these fluctuations resulted from anything other than the normal ups and downs of a small family business.Furthermore, the court stated that it averaged the bonuses because there was substantial animosity between the parties, and any attempt to recalculate income annually would not serve the best interests of the couple's children.Given these facts, we find no abuse of discretion in the trial court's assessment of husband's bonus income.

II.Did the Court Err in Setting Wife's Alimony?

Wife argues the trial court failed to consider the proper factors in setting her alimony award.Under Utah law, a trial court must consider at least the following factors in determining alimony: "(i) the financial condition and needs of the recipient spouse; (ii) the recipient's earning capacity or ability to produce income; (iii) the ability of the payor spouse to provide support; and (iv) the length of the marriage."Utah Code Ann. § 30-3-5(7)(a)(Supp.1997).We have previously held that if the mandatory factors have been considered, " 'we will not disturb the trial court's alimony award unless such a serious inequity has resulted as to manifest a clear abuse of discretion.' "Chambers v. Chambers, 840 P.2d 841, 843(Utah Ct.App.1992)(quo...