Kidd v. Kidd
| Decision Date | 30 January 2014 |
| Docket Number | No. 20120460-CA,20120460-CA |
| Citation | 2014 UT App 26 |
| Parties | ELAINE J. KIDD, Petitioner and Appellee, v. CLARK BRUCE KIDD, Respondent and Appellant. |
| Court | Utah Court of Appeals |
First District Court, Logan Department
The Honorable Kevin K. Allen
Raymond N. Malouf, Attorney for Appellant
Lyle W. Hillyard, Attorney for Appellee
JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGES
GREGORY K. ORME and CAROLYN B. MCHUGH concurred.
¶1 Clark Bruce Kidd (Husband) appeals from several orders of the trial court related to the dissolution of his marriage to Elaine J. Kidd (Wife). We affirm.
¶2 Husband and Wife married on March 13, 1980, and divorced on March 9, 2012, after thirty-two years of marriage. Although the parties were able to agree on most of the terms of their divorce, they could not resolve four issues that are now the subject of this appeal: alimony; Husband's demand that as a condition of receiving certain personal assets, Wife pay him the $4,505 she had withdrawn from a joint account; distribution of a thrift savings plan (TSP) account;2 and removal of Wife's name from the mortgage on the marital home. After a bench trial on November 18, 2011, the trial court entered findings of fact and conclusions of law in a memorandum decision.
¶3 At the time of the trial, Husband, who was fifty-six, earned a gross monthly income of $5,925. He also collected another $2,324 per month from pensions and rental income and had approximately $87,000 in savings. Wife, age fifty-five, was then unemployed, but she had worked at a Wal-Mart pharmacybetween 2006 and 2010 for approximately thirty-five hours per week at $9.80 per hour. The trial court heard evidence that Wife had, at some time in the past, partially completed the coursework for a college degree but that she had experienced difficulty in maintaining employment due to depression. For purposes of its alimony determination, the court imputed to Wife a salary of $9 per hour or $1,560 per month. The court accepted both parties' estimates of their respective monthly expenses, which amounted to $7,270 for Husband, including income taxes and other deductions, and $6,078 for Wife.3 The parties' combined expenses were approximately $3,500 more than their combined income. Because Husband was receiving from employment, retirement, and rental income $979 more than his monthly expenses and Wife considerably less than hers, the court found it "appropriate to equalize the parties' standards of living" by having Husband "help provide for [Wife's] needs." It therefore awarded Wife monthly alimony in the amount of $2,182.50. The court explained that it arrived at this figure by adding the parties' monthly income only from employment ($5,925 + $1,560 = $7,485), dividing that income in half ($7,485 / 2 = $3,742.50), and subtracting the income imputed to Wife ($1,560). This division left both parties with a monthly shortfall but was intended to ensure that the shortfall in their ability to maintain the marital standard of living was equitably shared. The court made the alimony award retroactive to the time of the separation in October 2010 and awarded Wife $9,555 in back alimony, the difference between the permanent monthlyalimony award ($2,182.50) and the temporary monthly alimony amount ($1,500), calculated from October 1, 2010, when temporary alimony began, to December 19, 2011, when permanent alimony was awarded.
¶4 The parties reached agreement about the division of most of their assets. However, $4,505 that Wife had withdrawn from a marital account remained in dispute, as did interpretation of the provision of their settlement agreement that related to division of Husband's TSP account.
¶5 Shortly after the parties' separation, Wife withdrew $4,505 from a joint bank account primarily used by Husband. Eventually, Wife paid the $4,505 to Husband, although the parties dispute the circumstances that led her to do so.
¶6 At trial, Wife testified that when she attempted to pick up personal property from the former marital home, as the parties had earlier agreed she could, Husband prevented her entry, stating, "[Y]ou're not taking anything until we've settled the [$]4,505 that you owe me from my account that you took." Wife testified that she wrote a check on the spot for $4,505 so that she could collect her personal property.
¶7 Husband testified, however, that the parties had reached a tentative agreement on how to divide their personal property but renegotiated because Wife wanted some additional property, primarily a piano, that they had yet to divide. According to Husband, the parties reached a new agreement in which Wife agreed to pay the $4,505 in exchange for the piano and some other items. Husband explained that they had settled this payment when they had divided their final joint banking account, which contained $10,788 of equity withdrawn from the marital home. Wife was entitled to half that amount ($5,394),but Husband claims that because she had agreed to pay the $4,505 she had withdrawn from another account, he paid her the difference between her share and the withdrawal, or $899, by check. The trial court resolved this dispute in Wife's favor and "awarded [her] a credit of $4,505.00 as a refund for funds [Husband] obtained from [her] by way of unlawful coercion."
¶8 During the marriage, Husband contributed to a TSP account. Prior to trial, Husband and Wife had executed a settlement agreement, in which they agreed to "evenly divide the TSP savings plan as of March 31, 2011." It appears that the parties intended that these assets be divided in advance of the entry of a final divorce decree, but by the time of trial, no Qualified Domestic Relations Order (QDRO) had been presented to the account administrator to distribute the assets. A dispute had also arisen regarding whether the TSP account was to be divided by assigning shares to Wife or by paying her their cash value. The trial court received evidence on the number of shares in the account and the value of the account as of four separate dates: October 1, 2010, the date that temporary alimony was ordered; March 31, 2011, the date agreed upon in the settlement agreement; April 1, 2011, the date after the one agreed upon in the settlement agreement; and October 28, 2011, just before trial. The number of shares had steadily increased between October 1, 2010, and October 28, 2011, due to Husband's continued contributions to the account after the parties' separation. The value of each share had also increased between October 1, 2010, and April 1, 2011, but by October 28, 2011, the value of each share had decreased. Wife argued that the TSP account could not be properly allocated by simply dividing the number of shares; rather, she contended, "[y]ou have to figure out the value and then make an award of money that . . . offsets that value."
¶9 The trial court concluded that the settlement agreement contemplated that the parties would evenly divide the value of the TSP account rather than the shares. It calculated the account's value by multiplying the number of shares on April 1, 2011 (2992.4822 shares) by the value of each share as of October 28, 2011 ($21.1507 per share). The court explained that it used October 28 as the valuation date so as not to penalize Husband for any decrease in share value due to the delay in dividing the account.4 According to that calculation, the account had a value of $63,293.09, and the court awarded Wife $31,646.55 in accordance with the parties' agreement to "evenly divide the TSP savings plan."
¶10 Sometime after executing the written settlement agreement, Husband and Wife orally agreed that Husband would buy Wife's interest in the marital home and take action to remove her name from the mortgage loan.5 In spring 2010, the parties had refinanced the marital home, at which time theywithdrew and divided evenly much of the equity from the marital home. In June 2011, Husband paid Wife $1,000 for her share of the small remaining equity and Wife executed a warranty deed transferring her ownership interest in the home to Husband. By the time of trial however, Husband had not yet taken steps to remove Wife's name from the mortgage. The trial court therefore ordered Husband to "take the necessary steps to remove [Wife's] name from the mortgage" by March 18, 2012, ninety days from the entry of the memorandum decision.
¶11 On March 9, 2012, the trial court entered a final decree of divorce, to which it attached copies of the parties' settlement agreement and the court's memorandum decision, both of which were incorporated by reference in the decree. In addition to the issues specifically addressed in the memorandum decision and the findings of fact and conclusions of law, the decree included provisions outlining the QDROs needed to divide Husband's retirement accounts and established the length of the marriage—thirty-two years—as the term for Husband's payment of alimony, with the usual provisions for termination in the event of remarriage, cohabitation, or death.
¶12 Husband now appeals.
¶13 Husband challenges the trial court's $2,182.50-per-month alimony award. Specifically, Husband asserts that the court abused its discretion by awarding alimony without an adequate basis for its finding on Wife's needs and by awarding alimony in excess of Wife's needs and Husband's ability to pay. "Alimony determinations will be upheld on appeal unless a clear and prejudicial abuse of discretion is demonstrated." Mark v. Mark, 2009 UT App 374, ¶ 6, 223 P.3d 476 (citation and internal quotation marks omitted). In making an award of alimony, the court must "support[] its decision with adequatefindings and conclusions." Id. (citation and internal quotation marks omitted). Those findings must be "sufficiently detailed and include enough...
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