Munns v. Munns

• Decision Date: 04 April 1990
• Docket Number: No. 880585-CA,880585-CA
• Citation: 790 P.2d 116
• Parties: Mary MUNNS, Plaintiff and Appellant, v. Lowell Shelley MUNNS, Defendant and Respondent.
• Court: Utah Court of Appeals

Page 116

790 P.2d 116

Mary MUNNS, Plaintiff and Appellant, v. Lowell Shelley MUNNS, Defendant and Respondent.

No. 880585-CA.

Court of Appeals of Utah.

April 4, 1990.

Kelly G. Cardon, Judy Dawn Barking, Kelly G. Cardon & Associates, Ogden, for plaintiff and appellant.

Ben H. Hadfield, Mann, Hadfield, & Thorne, Brigham City, for defendant and respondent.

Before BILLINGS, GARFF, and ORME, JJ.

OPINION

GARFF, Judge:

Appellant challenges the district court's rulings in her divorce proceeding concerning alimony, property distribution, and attorney fees. We affirm in part and reverse in part.

Appellant Mary Munns and respondent Lowell Shelley Munns had been married for thirty-eight years at the time their decree of divorce was entered. Twelve children were born from this marriage, three of whom were still minors at the time the divorce was filed, and two of whom are still minors.

Appellant was, at the time of the divorce, fifty-eight years old. She is in relatively good health except for a problem with her hands, which required surgery, and an ulcer. She also suffers from a partial hearing loss, for which she must wear a hearing aid in each ear. She did not work outside of the home during the marriage, so developed no marketable skills. Since the beginning of the divorce proceedings, appellant has been unable to obtain full or part-time work except as a substitute in the local school lunch program, totalling three to four hours per day of minimum-wage work when available. At the time of the final hearing, she had only worked two shifts as a substitute, and had no expectation of getting a permanent position.

Respondent had worked full-time at Morton Thiokol for fourteen years, with an hourly wage at the time of the final hearing of $13.97 per hour. During many of the years of the marriage, he had been able to work substantial overtime, resulting in annual incomes of between $35,000 and $38,669. However, beginning in 1988, his opportunity to work overtime decreased dramatically. Respondent is also self-employed on his farm, generating an annual income of $4,000 to $7,000.

During the course of the marriage, the parties acquired the following property: A house on .82 acres of land and an adjoining unimproved .79 acre lot; household furnishings; a one-half acre lot with a double wide mobile home on it; two parcels of agricultural property, totalling about 200 acres; several old vehicles, most of which did not operate; livestock; a savings account; and a huge collection of junk and scrap metal.

Appellant filed for divorce on July 31, 1986. During the pendency of these proceedings, appellant paid off the mortgage on the house.

On November 24, 1987, the court granted the parties a divorce decree and continued the case for the purpose of obtaining testimony regarding property valuation.

The court subsequently issued a memorandum decision on August 1, 1988. In it, the court granted appellant custody of the two remaining minor children, child support of $197 per child per month, and temporary alimony of $300 per month, ending when appellant reaches the age of 62. The court valued the parties' properties and divided them in kind, equalizing the property division by awarding appellant $9,000, to be paid in two equal annual installments of $4,500.

Appellant had incurred $2,000 in attorney fees, exclusive of costs, during the pendency of the divorce. By the time of the final hearing, she had paid $475 of this amount from joint funds, leaving a balance of $1,525 plus costs. Respondent had incurred $2,300 in attorney fees. The court ordered each party to pay his or her own attorney fees.

Appellant contends that: (1) The trial court unfairly distributed the property by (a) awarding all the property in kind, rather than requiring that the properties be sold and the proceeds used to first liquidate the parties' obligations and then to be split between them; (b) awarding an oversized portion of the property, including all the liquid assets, to respondent; and (c) allowing respondent to pay the $9,000 judgment over a two year period. (2) The trial court abused its discretion in awarding her temporary alimony of only $300 per month. (3) The trial court similarly abused its discretion in failing to award her attorney fees. Respondent alleges that appellant has brought a frivolous appeal and, thus, should be required to pay his attorney fees on appeal.

I. PROPERTY DISTRIBUTION

The trial court awarded plaintiff, as her portion of the marital property, the family house, the mobile home and lot, the building lot, two vehicles, the household furnishings, and the savings account, plus the $9,000 judgment. Respondent received the farm property, subject to the mortgage; the remaining vehicles and machinery, subject to the debts owed on them; the junk and scrap metal; and the livestock. As indicated, he was ordered to pay appellant $4,500 within twelve months of the date of the entry of the decree, and the balance of $4,500 within the following twelve months.

In dividing a marital estate, the trial court is empowered to enter equitable orders concerning property distribution. Kerr v. Kerr, 610 P.2d 1380, 1382 (Utah 1980); Weston v. Weston, 773 P.2d 408, 410 (Utah Ct.App.1989); Rasband v. Rasband, 752 P.2d 1331, 1335 (Utah Ct.App.1988). In making such orders, the court is permitted considerable discretion, which will not be disturbed so long as it exercises this discretion in accordance with the standards set by this state's appellate courts. Weston, 773 P.2d at 410; see also Carlton v. Carlton, 756 P.2d 86, 87 (Utah Ct.App.1988).

First, we do not find that the trial court abused its discretion in awarding all property in kind rather than ordering its sale and then awarding the proceeds. It is clear from the record that the trial court considered forcing such a sale, but apparently abandoned that solution because of the parties' hostility toward each other and their total refusal to cooperate during the course of the litigation. ¹ The court is not required to order the sale of any property, but may award property in kind and leave any sale to the discretion of the party to whom it is awarded.

Second, we do not find that the trial court awarded a substantially larger portion of the marital estate to respondent than to appellant. To permit appellate review of a trial court's property distribution in a divorce proceeding, the distribution should be based upon adequate findings. Andersen v. Andersen, 757 P.2d 476, 479 (Utah Ct.App.1988). These findings must place a dollar value on the distributed assets. Id.

In the present case, the trial court was so concerned with finding the appropriate property values that, when the valuation evidence was inadequate, it continued the hearing for further appraisal information. ² After hearing evidence as to the value of the parties' properties, and after personally inspecting the property, the court made specific written findings as to value of each item of property, as follows: (1) The family home and lot plus the undeveloped lot, $26,388; (2) the mobile home and lot, $26,000; (3) the building lot, $11,000; (4) the farm, $48,547; (5) various vehicles and farm machinery, $23,859; (6) junk and scrap metal, $10,000; (7) household furnishings, $3,000; (8) livestock, $4,000; (9) the savings account, $3,200; and (10) two vehicles, $850.

This court will not disturb the trial court's valuations absent a showing of a clear abuse of discretion. Ebbert v. Ebbert, 744 P.2d 1019, 1023 (Utah Ct.App.1987). The evidence presented on the record supports the trial court's findings. Respondent correctly points out that much of appellant's so-called "evidence" as to her property valuations were not part of the record, but were introduced for the first time on appeal. It is well settled that we do not review evidence for the first time on appeal. Low v. Bonacci, 788 P.2d 512, 513 (1990). Further, even if appellant's appraisal had been a part of the evidence, failure of the court to accept one party's proposed valuation of property is not an abuse of discretion. Ebbert, 744 P.2d at 1023. We find that the trial court did not abuse its discretion in evaluating the parties' property and, therefore, did not unfairly distribute it.

Third, the record does not support appellant's claim that the trial court awarded all the nonliquid assets to her while awarding all the liquid assets to respondent. It is well settled that there is no fixed formula for the division of marital property, but that the trial court has the power to divide property and income so that the parties may readjust their lives to their new circumstances as well as possible. Weston, 773 P.2d at 411; see also Sorensen v. Sorensen, 769 P.2d 820, 824 (Utah Ct.App.1989) cert. granted 779 P.2d 688 (1989).

Here, the trial court awarded appellant, who needed income and was clearly unable to provide herself with a place to live, the marital home, the building lot, the mobile home and lot, vehicles, the household furnishings, a savings account, and the $9,000 judgment. Respondent, who loved the farm and worked it, and who had acquired the junk over the course of the marriage, was awarded the farm property subject to the mortgage, vehicles and farm machinery subject to the debts on them, livestock, and the junk. The trial court apparently allocated the property based upon the parties' needs and interests. We find no error in this.

While the farm property generated some income, the record suggests that the income generated did not even offset the cost of servicing the various mortgages on the property. Farm property and equipment are not easily and quickly sold, and so are not, as appellant contends, liquid assets. However, the junk and the livestock have some liquidity, in that a $10,000 offer had been made for the junk and respondent had sold some of the livestock during the pendency of this action.

While appellant's assets are, likewise, not very liquid,...