Hill v. Hill

• Decision Date: 04 November 1992
• Docket Number: No. 910407-CA,910407-CA
• Citation: Hill v. Hill, 841 P.2d 722 (Utah App. 1992)
• Parties: Tamara Kay HILL aka Tamara O'Driscoll, Plaintiff and Appellee, v. Herschel Leroy HILL, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 722

841 P.2d 722

Tamara Kay HILL aka Tamara O'Driscoll, Plaintiff and Appellee, v.Herschel Leroy HILL, Defendant and Appellant.

No. 910407-CA.

Court of Appeals of Utah.

Nov. 4, 1992.

Robert M. McRae, Vernal, for defendant and appellant.

Tamara Kay O'Driscoll, pro se.

Before BILLINGS, JACKSON and RUSSON, JJ.

OPINION

JACKSON, Judge:

Mr. Hill appeals an order modifying the child support provisions of the original decree of divorce.We reverse and remand in part and affirm in part.

BACKGROUND

The parties were married eleven years and at the time of the divorce were parents of children, ages 7 and 9.Their stipulated decree required Mr. Hill to pay $200 support per month per child.The agreed decree provided for termination of support upon the death or emancipation of a child.The decree stated four events that would constitute emancipation but stated that emancipation would be postponed if "the child is enrolled as a full-time student in an accredited institution of higher learning."Then, the support obligation would continue until graduation but not beyond the age of 23.

In 1991, Mrs. Hill served an order to show cause on Mr. Hill seeking judgment for $2400 in child support arrearage.He responded with an answer and petition to modify his child support obligations.His pleading concluded:

As a result of the material change of circumstances in defendant's earning abilities, the children of the parties' full time employment, and [Mrs. Hill's] being employed, defendant is entitled to a modification of the support decree in accordance with the Uniform Child Support Guidelines and for a reduction of same.

The trial court ruled that a material change in the parties' circumstances had occurred, ordered support reduced to $180 per child per month, and ordered that their son's support continue due to enrollment in an institution of higher learning.On appeal, Mr. Hill asserts the trial court erred in not requiring their son to have "passable grades" as a condition to extending support beyond his 18th birthday.Mr. Hill also claims error in the trial court's failure to apply the Uniform Child Support Guidelines in calculating the amount of support as required by Utah Code Ann. § 78-45-7.2(1992).¹

STANDARD OF REVIEW

Due to the equitable nature of child support proceedings, we accord substantial deference to the trial court's findings and give it considerable latitude in fashioning support orders.Woodward v. Woodward, 709 P.2d 393, 394(Utah1985).Accordingly, we will not disturb its actions unless there has been an abuse of discretion.Id.However, failure of the trial court to consider and make findings on statutorily mandated factors is itself an abuse of discretion.See, Jefferies v. Jefferies, 752 P.2d 909, 911-12(Utah App.1988).

ANALYSIS

First, we examine the provision extending support beyond the age of majority.In this proceeding, the parties' son is beyond the age of majority and attending the Utah State University Uintah Basin Education Center.The trial court entered several findings regarding this issue including: (1)the parties initially agreed to this provision, (2) the director of the U.S.U. Center testified that full-time status of a student is defined as registration for at least 12 credit hours without regard to completion of the course or grade earned, unless they affect the student's status to continue, (3) the son had been enrolled for at least 12 credit hours since his 18th birthday, and (4) the son's academic standing would not prevent him from continuing as a student even though not enrolled for summer quarter.

Mr. Hill argues that their son should have "passing grades of a 2.0 or C average" so he can graduate, and that his grades were below a C average.Mr. Hill contends it is "unjust to punish [him] by ordering him to [comply] with the strict terms of the separation agreement under this fact situation."However, "[e]quity is not available to reinstate rights and privileges voluntarily contracted away simply because one has come to regret the bargain made."Land v. Land, 605 P.2d 1248, 1251(Utah1980).Further, both parties made concessions in exchange for their respective benefits.It is a proper assumption that Mrs. Hill "settled for the sum she received in reliance on the availability of additional funds to assist the children, living with her, in completing their education."Despain v. Despain, 627 P.2d 526, 528(Utah1981).It would be highly inequitable to permit Mr. Hill to...