Mark v. Mark

• Decision Date: 10 December 2009
• Docket Number: No. 20080840-CA.,20080840-CA.
• Citation: 2009 UT App 374,223 P.3d 476
• Parties: Kathleen C. MARK, Petitioner and Appellee, v. Rickie D. MARK, Respondent and Appellant.
• Court: Utah Court of Appeals

223 P.3d 476

2009 UT App 374

Kathleen C. MARK, Petitioner and Appellee, v. Rickie D. MARK, Respondent and Appellant.

No. 20080840-CA.

Court of Appeals of Utah.

December 10, 2009.

Christina L. Micken, Layton, for Appellant.

Richard S. Nemelka, Salt Lake City, for Appellee.

Before GREENWOOD, P.J., ORME and DAVIS, JJ.

OPINION

DAVIS, Judge:

¶ 1 Rickie D. Mark (Husband) appeals the trial court's award of rehabilitative alimony in his favor in the amount of $1200 per month for one year following the entry of the divorce decree. Husband also appeals the trial court's order directing him and Kathleen C. Mark (Wife) to each pay their own attorney fees. We affirm in part and reverse and remand in part.

BACKGROUND

¶ 2 Husband and Wife married in July 1982 and divorced in September 2008, after more than two years of separation.¹ During the course of their twenty-six-year marriage, Wife obtained a master's degree and worked as a certified nurse midwife. Husband completed three and one-half years of course work at Weber State University in design graphics engineering technology and primarily worked in construction and sales.² Wife made a significantly higher salary than Husband during the marriage. Indeed, at the time of trial, Wife's gross income as a certified nurse midwife was $17,916 per month, while Husband's average monthly gross income from his position in inside sales with Stock Building Supply was $2025 per month.³

¶ 3 In anticipation of the trial in this matter, Wife hired an employability analyst who prepared a report regarding Husband's potential earning capacity (the employability report). Taking into consideration Husband's schooling and work history, the employability report concluded,

Although [Husband] has three and a half years in specialized training in design graphics[] engineering technology, there are limited employment opportunities in this area. Since he . . . has not worked in this area and did not complete the program, [Husband] would have difficulty competing with other job applicants for these limited positions.[⁴]

The employability report also stated that one of Husband's employment options might be full-time work as an architectural, civil, or mechanical drafter, with a starting annual salary ranging from $24,980 to $31,070.⁵

¶ 4 At trial, Husband testified that his current monthly expenses, including rent and utilities, totaled roughly $740. Husband also testified, however, that his "anticipated expenses," including the purchase of a new house and a newer car, as well as a monthly vacation savings account, totaled approximately $4130. Wife, on the other hand, testified that her monthly expenses were approximately $11,000 per month.

¶ 5 In November 2007, the trial court issued a memorandum decision awarding Husband rehabilitative alimony for one year in the amount of $1200 per month and ordering that Husband and Wife each pay their own attorney fees.⁶ In September 2008, the trial court entered findings of fact, conclusions of law, and a divorce decree consistent with the memorandum decision. The trial court found,

[Husband] deserves a good deal of blame associated with the dissolution of this marriage. Credible testimony establishes that he has a problem with alcohol that has led to several encounters with law enforcement. . . . [Wife] has obtained a protective order against [Husband]. . . . Additionally [Wife] has been the family's primary financial support with [Husband] working only intermittently throughout the marriage.

As to the alimony award, the trial court found, "[Husband] has demonstrated some need for alimony but has also inflated that need as demonstrated in his proposed future expenses. . . . [Wife] has the ability to pay alimony." Finally, the trial court found, "Although fault is an appropriate consideration in awarding alimony in addition to the [mandatory statutory factors], the Court is mindful of the Utah policy that the purpose of alimony is to provide support, not to reward or punish." (Emphasis added.) Husband now appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 6 Husband first claims that the trial court erred in awarding one year of rehabilitative alimony in the amount of $1200 per month. Alimony determinations "will be upheld on appeal unless a clear and prejudicial abuse of discretion is demonstrated." Riley v. Riley, 2006 UT App 214, ¶ 15, 138 P.3d 84 (internal quotation marks omitted). Accordingly, "[w]e will not disturb a trial court's ruling on alimony as long as the court `exercises its discretion within the bounds and under the standards we have set and has supported its decision with adequate findings and conclusions.'" Bell v. Bell, 810 P.2d 489, 491 (Utah Ct.App.1991) (quoting Naranjo v. Naranjo, 751 P.2d 1144, 1147 (Utah Ct.App. 1988)).

¶ 7 Husband also argues that the trial court erred in ordering the parties to pay their own attorney fees. "Trial courts have broad discretion in . . . awarding attorney fees. Where the trial court may exercise broad discretion, we presume the correctness of the court's decision absent . . . a clear abuse of discretion." Childs v. Childs, 967 P.2d 942, 944 (Utah Ct.App.1998) (omission, citation, and internal quotation marks omitted).

ANALYSIS

I. The Alimony Award

¶ 8 Husband contends that the trial court erred because it failed to consider the mandatory factors outlined in Utah Code section 30-3-5(8)(a), see Utah Code Ann. § 30-3-5(8)(a) (2008), namely, Husband's financial need and ability to produce income, see id. § 30-3-5(8)(a)(i)-(ii). Husband also claims that the trial court erred in awarding rehabilitative alimony and in improperly considering fault. Each of these arguments is considered in turn.

A. Failure to Address Required Statutory Factors

¶ 9 Husband argues that the trial court exceeded its broad discretion by failing to consider his financial needs and earning capacity as required by statute. It is well established that the trial court must consider several factors before making an alimony award:

Under Utah Code section 30-3-5, the trial court must consider, at a minimum, 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. . . ."[⁷]

Riley, 2006 UT App 214, ¶ 17, 138 P.3d 84 (quoting Utah Code Ann. § 30-3-5(8)(a)(i)-(iv)). "Failure to consider these factors [in fashioning an alimony award] constitutes an abuse of discretion." Rehn v. Rehn, 1999 UT App 41, ¶ 6, 974 P.2d 306; see also Bell, 810 P.2d at 492; Stevens v. Stevens, 754 P.2d 952, 958-59 (Utah Ct.App.1988). "Accordingly, the trial court must make sufficiently detailed findings of fact on each factor to enable a reviewing court to ensure that the trial court's discretionary determination was rationally based upon these . . . factors." Bell, 810 P.2d at 492. These factual findings "`should . . . include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached.'" Rehn, 1999 UT App 41, ¶ 6, 974 P.2d 306 (omission in original) (quoting Stevens, 754 P.2d at 958). "The absence of findings of fact is a fundamental defect that makes it impossible to review the issues that were briefed without invading the trial court's fact-finding domain." Bakanowski v. Bakanowski, 2003 UT App 357, ¶ 13, 80 P.3d 153 (internal quotation marks omitted). Thus, "[i]f sufficient findings are not made, we must reverse unless the record is clear and uncontroverted such as to allow us to apply the [statutory] factors as a matter of law on appeal." Bell, 810 P.2d at 492.

¶ 10 In this case, the trial court made only one finding regarding the required statutory factors: "As to the issue of alimony, the Court finds that [Husband] has demonstrated some need for alimony but has also inflated that need as demonstrated in his proposed future expenses. The Court finds that [Wife] has the ability to pay alimony." This finding simply does not "include enough subsidiary facts to disclose the steps by which the ultimate conclusion [on each statutory factor] was reached." See Rehn, 1999 UT App 41, ¶ 6, 974 P.2d 306 (internal quotation marks omitted). Without adequate findings of fact justifying the alimony award, we cannot determine it's validity on appeal. Accordingly, we remand for the trial court to make factual findings to support the award or to modify the award in light of Husband's need and earning capacity.

B. Rehabilitative Versus Permanent Alimony

¶ 11 Husband contends that because of his age, the length of the marriage, and his weak employment prospects, the trial court erred in ordering that the alimony award of $1200 per month terminate after one year. While it is true that rehabilitative alimony awards are not always inequitable, there are certain situations where a rehabilitative alimony award is simply inappropriate, see Olson v. Olson, 704 P.2d 564, 567 (Utah 1985). We agree with Husband that such is the case here.

¶ 12 "Utah Code [section 30-3-5(8)(h)] states that alimony may not be awarded for longer than the term of the marriage absent `extenuating circumstances.'" Jensen v. Jensen, 2008 UT App 392, ¶ 16, 197 P.3d 117. However, "the Code does not bar an award for a shorter duration." Id. "The purpose of rehabilitative alimony is in the short run to close the gap between actual expenses and actual income to enable the receiving spouse to then be better able to support [him- or] herself when the [rehabilitative period] end[s]." Bell v. Bell, 810 P.2d 489, 493 n. 3 (Utah Ct.App. 1991). In determining whether a trial court has exceeded its discretion in awarding rehabilitative alimony, as opposed to traditional alimony, appellate courts consider several factors. These factors include the length of the marriage, the age of the recipient spouse, and the employment history and employability...