Jensen v. Jensen, 20070312-CA.

• Decision Date: 30 October 2008
• Docket Number: No. 20070312-CA.,20070312-CA.
• Citation: 2008 UT App 392,197 P.3d 117
• Parties: William A. JENSEN, Petitioner and Appellee, v. Sonja JENSEN, Respondent and Appellant.
• Court: Utah Court of Appeals

197 P.3d 117

2008 UT App 392

William A. JENSEN, Petitioner and Appellee, v. Sonja JENSEN, Respondent and Appellant.

No. 20070312-CA.

Court of Appeals of Utah.

October 30, 2008.

Richard S. Nemelka and Stephen R. Nemelka, Salt Lake City, for Appellant.

Bart J. Johnsen, Salt Lake City, for Appellee.

Before Judges GREENWOOD, DAVIS, and McHUGH.

OPINION

GREENWOOD, Presiding Judge:

¶ 1 Sonja Jensen (Wife) appeals from the Decree of Divorce entered by the trial court, arguing, among other things, that the trial court erred both in its alimony and property division determinations and in failing to award her attorney fees. We affirm.

BACKGROUND

¶ 2 Wife and William A. Jensen (Husband) were married for nearly sixteen years prior to their separation in June 2003. At the time Husband filed for divorce, he resided in the parties' marital residence in Murray, Utah (the Murray residence) and was employed, earning approximately $10,000 per month.¹ Wife was forty-one years old, unemployed, and resided in the parties' condominium in Arizona (the Arizona condo). Wife worked during the early years of the marriage while Husband completed college. Afterwards, she did not work except for a brief period in 2001 and 2002, when she worked for Southwest Airlines. From the time of separation until the divorce was finalized, Husband paid the mortgage on the Arizona condo. Approximately one year after the parties separated, Wife was awarded temporary alimony of $2859 per month, effective June 11, 2004.

¶ 3 At the conclusion of a two-day trial, the trial court awarded Wife $2581 per month in alimony for a period of five years, while simultaneously denying her request for retroactive alimony—applicable from the June 2003 separation to the June 2004 temporary alimony award—because it found that Wife had presented insufficient evidence to justify retroactive alimony. In arriving at the alimony amount, the court imputed $1419 per month in income to Wife based on her brief employment with Southwest Airlines.² The court awarded the Murray residence to Husband and the Arizona condo to Wife. The court valued the Murray residence and the Arizona condo based upon their appraised values and divided the equity equally, ordering the parties to sell each property or the nonpossessing party to be "bought-out" when the parties' younger child reaches age eighteen or graduates from high school. In reaching this ruling, the court set aside the parties' previously entered stipulation that stated that the Murray residence would be sold at the time the divorce was finalized.

¶ 4 Because Husband had made the mortgage payments on the Arizona condo since the parties' separation, the court ordered Wife to reimburse Husband for one-half of those payments. With insufficient evidence to value the personal property, the trial court further ordered all of the personal property to be sold and the proceeds divided equally. Finally, the trial court ordered each party to pay their own attorney fees and dealt with other matters not at issue in this appeal. Wife appeals, arguing that the trial court abused its discretion in several respects.

ISSUES AND STANDARDS OF REVIEW

¶ 5 Wife argues that the trial court erred in limiting the amount and duration of alimony she would receive from Husband. Similarly, Wife argues that the trial court abused its discretion in denying her request for retroactive alimony. "`Trial courts have considerable discretion in determining alimony ... and [determinations of alimony] will be upheld on appeal unless a clear and prejudicial abuse of discretion is demonstrated.'" Davis v. Davis, 2003 UT App 282, ¶ 7, 76 P.3d 716 (alterations in original) (quoting Breinholt v. Breinholt, 905 P.2d 877, 879 (Utah Ct.App.1995)).

¶ 6 Wife also argues that the trial court erred by not enforcing the parties' stipulation to immediately sell the Murray residence. A trial court's decision to reject or modify a stipulation related to property division in a divorce proceeding is reviewed for an abuse of discretion. See Clausen v. Clausen, 675 P.2d 562, 564 (Utah 1983).

¶ 7 In addition, Wife argues that the trial court erred in its personal property distribution as well as in ordering Wife to repay Husband for one-half of the postseparation payments on the Arizona condo mortgage. We will make changes to "`a trial court's property division determination in a divorce action only if there was a misunderstanding or misapplication of the law resulting in substantial and prejudicial error, the evidence clearly preponderated against the findings, or such a serious inequity has resulted as to manifest a clear abuse of discretion.'" Davis, 2003 UT App 282, ¶ 8, 76 P.3d 716 (quoting Bradford v. Bradford, 1999 UT App 373, ¶ 25, 993 P.2d 887 (internal quotation marks omitted)).

¶ 8 Finally, Wife contends that the trial court erred in failing to award her attorney fees. We review a trial court's decision regarding attorney fees in a divorce proceeding for an abuse of discretion. See id. ¶ 9.³

ANALYSIS

I. Alimony

¶ 9 Wife argues that the trial court abused its discretion in awarding her only $2581 per month in alimony for a period of only five years. Relatedly, Wife argues that the trial court erred in denying her request for retroactive alimony applicable to the approximately one-year time period between the parties' separation and the entry of the temporary alimony award. Trial courts have broad discretion in making alimony awards so long as they consider at least the following factors:

(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;

(iv) the length of the marriage;

(v) whether the recipient spouse has custody of minor children requiring support;

(vi) whether the recipient spouse worked in a business owned or operated by the payor spouse; and

(vii) whether the recipient spouse directly contributed to any increase in the payor spouse's skill by paying for education received by the payor spouse or allowing the payor spouse to attend school during the marriage.

Utah Code Ann. § 30-3-5(8)(a)(i)-(vii) (Supp. 2008).⁴ In addition, trial courts must be mindful of the primary purposes of alimony: "(1) to get the parties as close as possible to the same standard of living that existed during the marriage; (2) to equalize the standards of living of each party; and (3) to prevent the recipient spouse from becoming a public charge." Richardson v. Richardson, 2008 UT 57, ¶ 7, 611 Utah Adv. Rep. 12, ___ P.3d ___, 2008 WL 3835161 (citations omitted). Where a trial court considers these factors, we will disturb its alimony award only if there is "`a serious inequity ... manifest[ing] a clear abuse of discretion.'" Kelley v. Kelley, 2000 UT App 236, ¶ 26, 9 P.3d 171 (quoting Childs v. Childs, 967 P.2d 942, 946 (Utah Ct.App.1998) (internal quotation marks omitted)).

A. Amount of Alimony

¶ 10 Wife argues that the trial court erred in determining the amount of alimony. More precisely, Wife argues that the trial court abused its discretion by imputing income to her at higher than minimum wage reducing her claimed monthly expenses, and failing to equalize the parties' standards of living. In awarding Wife alimony, the trial court found that Husband earned approximately $10,000 per month and had monthly needs of $5084. While the court found Wife was suffering from a situational depression, it also found that her depression did not affect her ability to work. Moreover, the court found that "[Wife's] depression will be reduced" by resolution of the parties' divorce. Consequently, the court found that Wife was currently underemployed, and imputed $1419 per month in income to Wife, based on her short-term employment with Southwest Airlines; employment which the court found "to be a benchmark of [Wife's] ability to earn an income." The trial court also found that Wife's actual, demonstrated financial need was $4000 per month. Subtracting Wife's imputed income from her demonstrated need, the court found that Wife required an additional $2581 per month to support herself and that Husband was able to pay the same to Wife.

¶ 11 In addition, the court noted the length of the parties' marriage and the fact that Husband, not Wife, had custody of the parties' minor child after the divorce. The trial court was presented with evidence that Wife worked outside the home while Husband finished his schooling, but failed to note that fact in its findings. Despite that omission, we conclude that the trial court considered each of the relevant statutory factors in determining the amount of Wife's alimony award, and accordingly, we now examine whether the amount of alimony was seriously inequitable.⁵

¶ 12 Wife argues that the trial court abused its discretion by imputing excessive income to her and in determining her financial need. However, Wife fails to marshal the evidence necessary to challenge these factual findings and simply reargues the evidence she presented at trial. See Moon v. Moon, 1999 UT App 12, ¶ 24, 973 P.2d 431. The trial court made detailed findings regarding Wife's imputed income and her actual, demonstrated need. The court specifically noted that income was imputed to Wife based on her past employment, which the court found to be a "benchmark" of her earning potential. Also, although Wife's trial exhibit set her financial need at $4704 per month, not including payment of debt, the court found that she failed to prove the existence of much of her claimed debt. Further, the court reduced Wife's monthly need because it found that her "claimed expenses for window cleaning, food and household supplies, personal hygiene, health and auto insurance, an automobile lease that she does not have, clothing, psychiatrist, storage, and health club are overstated and exaggerated." Therefore, we conclude that the trial court's findings are supported by...