Kerr v. Kerr

• Decision Date: 29 April 1980
• Docket Number: No. 16495,16495
• Citation: 610 P.2d 1380
• Parties: Beverly KERR, Plaintiff and Respondent, v. Thomas Alden KERR, Defendant and Appellant.
• Court: Utah Supreme Court

Page 1380

610 P.2d 1380

Beverly KERR, Plaintiff and Respondent, v. Thomas Alden KERR, Defendant and Appellant.

No. 16495.

Supreme Court of Utah.

April 29, 1980.

J. Franklin Allred and Richard G. MacDougall, Salt Lake City, for defendant and appellant.

Robert S. Campbell, Jr. and Glen E. Davies of Watkiss & Campbell, Salt Lake City, for plaintiff and respondent.

HALL, Justice:

The trial court awarded each of the parties a decree of divorce. Defendant appeals from that portion of the decree which provides for the division of the marital property and the payment of property taxes, expert witness' fees and attorneys' fees.

The parties were married on November 22, 1946, and lived together as husband and wife for nearly 31 years until their separation on August 18, 1977. They have three children, two of whom have attained their majority and a son, Stephen, who at the time of trial was 15 years of age and whose custody was awarded to the plaintiff. From the time of their marriage until the summer of 1957, when their first child was born, the plaintiff worked and provided substantial financial support to the marriage. Defendant attended dental school during this time and graduated in 1955. Following his graduation, he established his own practice of dentistry which in 1977 produced a net income before taxes of $42,542 which included a deduction for tax purposes of $4,235.77 for depreciation. Plaintiff had not been gainfully employed outside the home since the birth of their first child in 1957 but had kept and maintained the home of the parties and cared for the three children. Plaintiff had been given by her father certain separate property and investments which in 1978 produced a total income of $3,829.

The defendant contends that the division of property made by the lower court was inequitable to the defendant both in the proportion awarded to him and also in the type of property allocated to him. He complains that the plaintiff was awarded full ownership of the house and lot which was fully paid for and which was appraised at $182,000 to $186,000 together with the household furniture and furnishings which he estimated to have a value of an additional $50,000, while he was awarded certain unsecured notes and contracts which the parties had purchased as investments with AFCO Development Corporation and which the president of AFCO testified were speculative in nature.

The division and distribution of marital property between parties to a divorce action is a matter wherein the trial court has been invested with broad discretion. An order bearing thereon will not be disturbed absent a clear abuse of such discretion. ¹

The division of property made by the trial judge falls within his ambit of discretion. According to defendant's own valuation placed upon the assets, the total value of the property distributed to him was $176,691.97 if the AFCO notes and contracts are valued at cost. Defendant produced no evidence as to the value of the notes and contracts while plaintiff produced testimony that the company was solvent and would be able to meet payments on the notes and obligations as they fell due. The president of that corporation testified that the corporation would be able to meet its obligations and that at the request of the defendant, payment on one of the notes had been deferred for one year. Against the property awarded to the defendant were obligations in the amount of $50,400 leaving him a total net distribution of $126,291.97. The portion of the marital assets distributed to the plaintiff total $247,325 according to defendant's valuations. Thus, according to defendant's figures, plaintiff received approximately two-thirds of the marital assets and defendant received one-third.

If the valuations presented by the plaintiff are used, then defendant received assets with a net value of $200,774.45 as against $240,950 for her which is approximately 55 percent to plaintiff and 45 percent to defendant.

The trial court had before it testimony that plaintiff had not been gainfully employed outside the home for nearly 22 years and that her skills were in clerical and sales work. On the other hand, the defendant had a well-established profession netting him in excess of $40,000 per year. The fact that, due to her willingness to work while he attended school, plaintiff has not increased her earning capacity to the same extent as had defendant, speaks in favor of the trial court's distribution. ²

Furthermore, it was undisputed that plaintiff contributed $10,000 from her own separate funds to completely furnish the first home of the parties and when that home was sold and their current home was purchased, many of those furnishings were moved to and are still in the new residence. Plaintiff contributed another $5,000 of her own funds in 1967 to retire the mortgage on this residence. In view of these undisputed facts the trial court did not abuse its discretion in awarding a greater portion of the marital property to the plaintiff than to the defendant.

It is true that the real estate awarded to the plaintiff and the furniture were of a more solid value than the unsecured notes and mortgages awarded to the defendant. However, these investments, unlike the house and lot, are interest bearing and defendant presented no evidence as to their value other than that they were "speculative." The fact that the defendant, however, voluntarily waived one of the annual payments on one of the contracts would indicate that he did not seriously question the solvency of AFCO or doubt its ability to pay its obligations. We certainly cannot say as a matter of law that the defendant will not eventually recover his entire investment and there appears a good possibility that he will reap a handsome return. Defendant had purchased the AFCO investments at his own instance and the plaintiff, while apparently not objecting, did not have much involvement in their purchase. For these reasons, we believe the trial court did not abuse its discretion in awarding the entire house and lot to the plaintiff and the entire AFCO investments to the defendant instead of splitting them between the parties in some fashion.

Defendant next complains of the requirement in the decree of divorce that he pay one-half of the property taxes on the residence for the year 1978 while this case was pending trial. In early 1978 the plaintiff had petitioned the lower court to award her temporary alimony and support money, estimating her monthly expenses to be $1,617 which included an allocation for property taxes in the amount of $100. The lower court awarded her $1,375 per month temporary alimony and support and ordered that she satisfy and discharge the obligations listed in her affidavit out of that award. The first payment to her commenced with the month of March 1978. The total property taxes on the residence for the year 1978 were $1,675.30.

We hold that there was no error in this regard. Even had plaintiff been charged with $100 per month for the payment of the taxes, she received temporary alimony and support money only for ten months, or a total of $1,000. This would still leave $675.30 remaining unpaid. Furthermore, defendant obtained a modification of the temporary award on August 14, 1978, reducing it by $100 per month. These were both temporary orders and the trial judge clearly had authority to modify them in making his final determination.

Defendant next complains of the requirement that he pay $450 per month for the support of his 15 year old son Stephen as long as he continues to reside with the plaintiff and is attending college full time or serving a mission for his church. This objection is well taken. U.C.A., 1953, 15-2-1 as amended, provides that minors attain their majority at age 18 unless sooner married but that courts in divorce actions may order support to age 21. The decree here did not limit the support to age 21 and more seriously was not based upon any finding of circumstances which would justify the order compelling the defendant to support his son beyond the age of 18. We held in Carlson v. Carlson, ³ that in the absence of such a finding an order of support for a child over 18 cannot stand. We appreciate that since Stephen's 18th birthday was at the time of trial more than three years in the future, the court could not know and therefore could not find what his specific needs would be at age 18. We therefore modify the decree to provide for the payment of child support until his 18th birthday at which time if support is still needed, the plaintiff may petition for a continuation of support based upon circumstances existing at that time.

Defendant's final argument on appeal challenges the award of expert witness' fees, and attorneys' fees. Defendant suggests that these were improper in that (1) evidence thereon was introduced after plaintiff had ostensibly rested her case, and (2) the amounts awarded were excessive.

It is within the discretion of the trial court to permit a party to reopen its case following submission to the court, and such action is not grounds for reversal in the absence of some prejudice demonstrable by the opposing party. ⁴ As no explanation was offered by defendant regarding the...