Naylor v. Naylor, 19050
| Decision Date | 23 May 1985 |
| Docket Number | No. 19050,19050 |
| Citation | 700 P.2d 707 |
| Parties | Robert G. NAYLOR, Plaintiff and Appellant, v. Julia Lee NAYLOR, Defendant and Respondent. |
| Court | Utah Supreme Court |
Walter Ellett, Murray, for plaintiff and appellant.
John D. Parken, B.L. Dart, Salt Lake City, for defendant and respondent.
This is an appeal from an order granting the respondent's motion to modify a decree of divorce. The appellant claims that the trial judge erred (1) in extending the period for the payment of temporary alimony, (2) in finding a material change in circumstances warranting an increase in alimony and child support, and (3) in awarding attorney fees to the respondent. We affirm.
The parties were divorced in 1978 after eleven and a half years of marriage. At the time he filed for divorce, the appellant had recently completed his medical training and had just become a practicing surgeon. The respondent was, and still is, a hairdresser. The findings of fact accompanying the original decree, which was entered pursuant to the written stipulation and property settlement of the parties, stated that the appellant had net earnings at that time of $2,600 per month and that the respondent had net earnings of $702 per month. The decree awarded alimony to the respondent in the amount of $500 per month for five years and child support in the amount of $250 per month until the child reaches age 21 or leaves the home or until a court-ordered modification, whichever occurs first.
In 1981, the respondent filed this action for modification of the decree, and the matter was tried in 1983. At the time of the hearing, the appellant had become a shareholder in his medical practice corporation and was earning a base salary of $5,000 per month (gross) plus annual bonuses. The bonuses prior to the hearing had been approximately $15,000 in 1979, $24,000 in 1980, and $23,500 in 1981. In addition, the appellant was receiving tax-deferred benefits in the form of contributions to his pension and profit-sharing accounts amounting to approximately 25 percent of his gross salary. The trial court found that the appellant's net income after taxes had increased to $75,000 since the time of the divorce.
After trial, the district court found that, at the time of the original divorce, the respondent
had an expectancy that in the five-year period for which the alimony was awarded she would be able to establish herself as a hairdresser and have an increase in income sufficient to meet her financial needs, which expectancy has not been fulfilled as her current income is only $720 per month.
The court also found that the living expenses of the respondent and the parties' child had increased from $1,450 at the time of the divorce to $2,180 at the time of the modification hearing, due to increases in the cost of living and the fact that the child had become a teenager with significantly greater financial needs. Finally, the court found, "[The respondent] needs and [the appellant] has the ability to pay an increased and extended alimony award and increased [child] support award." Consequently, the decree was modified to extend the payment of alimony through 1987 (an additional four years) and to increase the amount by $100 per month beginning in December 1982. The trial court also increased the amount of child support from $250 per month to $400 per month.
The appellant argues that the trial court exceeded its power in modifying the term of temporary alimony awarded in the original divorce decree even if a substantial change in relevant circumstances had occurred. This argument is contrary to the legislative mandate to the district courts and to the principles of equity followed by this Court. Section 30-3-5(1), U.C.A., 1953 (Supp.1983), states: "The court shall have continuing jurisdiction to make such subsequent changes or new orders with respect to the support and maintenance of the parties, the custody of the children and their support and maintenance, or the distribution of the property as shall be reasonable and necessary." The language of the statute makes it clear that the appellant's position that the trial court lacked power or jurisdiction to modify an alimony award is without merit. This Court rejected a similar argument respecting a stipulated settlement requiring periodic payments in Callister v. Callister, 1 Utah 2d 34, 261 P.2d 944 (1953):
We further hold that these [monthly payment] provisions are not an inseparable part of the agreement relating to division of property and that by approval of the agreement in the decree the court did not divest itself of jurisdiction under the statute to make such subsequent changes and orders with respect to alimony payments as might be...
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