Newmeyer v. Newmeyer, 19183

• Decision Date: 13 November 1987
• Docket Number: No. 19183,19183
• Parties: Kathryn Myrna NEWMEYER, Plaintiff and Respondent, v. Jeddy Paul NEWMEYER, Defendant and Appellant.
• Court: Utah Supreme Court

Page 1276

745 P.2d 1276

Kathryn Myrna NEWMEYER, Plaintiff and Respondent, v. Jeddy Paul NEWMEYER, Defendant and Appellant.

No. 19183.

Supreme Court of Utah.

Nov. 13, 1987.

Glen M. Richman, Salt Lake City, for appellant.

J. Bruce Reading, Michael W. Spence, Salt Lake City, for respondent.

ZIMMERMAN, Justice:

Plaintiff Kathryn Newmeyer brought this divorce action against her husband, Jeddy Newmeyer. The trial court granted Kathryn custody of the couple's minor child and awarded her the bulk of the property, one dollar per year as alimony, and attorney fees. Jeddy appeals. He contends that the property division was incorrect, that Kathryn should not have been awarded any alimony, and that the evidence is insufficient to support an award of attorney fees. We agree only with the third contention and vacate the award of attorney fees. The judgment is otherwise affirmed.

The Newmeyers were married just over twenty years. During that period, they owned three homes in succession. During the holding periods, each appreciated. The trial court awarded Jeddy an automobile, all rights to his pension plan, miscellaneous household items, his savings of approximately $7,000, and an equitable lien against the couple's current home in the amount of $32,606. The court awarded Kathryn the balance of the equity in the home, valued in excess of $80,000, two automobiles, miscellaneous household items, her savings of approximately $17,000, one dollar per year alimony, and $1,423 in attorney fees. Kathryn also was allowed to take an income tax deduction for the couple's minor child for the tax year 1982. Jeddy was required to pay $200 per month child support and was awarded the tax deduction for the minor child for all the years following 1982.

Jeddy challenges numerous aspects of the property division. However, he concentrates his attention on the division of the equity in the home. He challenges the findings on the relative contribution of each party and the current value of the home. Regarding the first of these issues--the contribution of each party--he contends that the trial court erred in finding that Kathryn should receive credit for substantial amounts she received from inheritances that were invested in the homes early in the marriage.

In dividing the marital estate, the trial court may make such orders concerning property distribution and alimony as are equitable. Utah Code Ann. § 30-3-5(1) (1984 & Supp.1987). In making such orders, the trial court is permitted broad latitude, and its judgment is not to be lightly disturbed, so long as it exercises its discretion in accordance with the standards set by this Court. Jones v. Jones, 700 P.2d 1072, 1074 (Utah 1985); see Pusey v. Pusey, 728 P.2d 117, 119 (Utah 1986). It is therefore incumbent on the appealing party to prove that the trial court's division violates those standards, see, e.g., Jones, 700 P.2d at 1074, or that the trial court's factual findings upon which the division is grounded are clearly erroneous under Utah Rule of Civil Procedure 52(a).

Jeddy concedes that Kathryn put money from her inheritances into the homes. However, he argues that because the inheritances received by Kathryn came into the marriage many years ago and were committed to the common venture of purchasing a home, the trial court was bound to divide this contribution equally between both parties. There is nothing in our cases that mandates such a result. The appropriate treatment of property brought into a marriage by one party may vary from case to case. Compare Workman v. Workman, 652 P.2d 931, 933 (Utah 1982) (husband's property acquired prior to marriage properly a part of marital assets to be divided upon divorce), and Jackson v. Jackson, 617 P.2d 338, 340-41 (Utah 1980) (title to marital property prior to divorce not binding on trial court's distribution), with Preston v. Preston, 646 P.2d 705, 706 (Utah 1982) (inheritance acquired during marriage properly excluded from valuation of marital assets), and Jesperson v. Jesperson, 610 P.2d 326, 328 (Utah 1980) (not unreasonable for trial court to withdraw from marital property the equivalent of assets brought into marriage). The overriding consideration is that the ultimate division be equitable--that property be fairly divided between the parties, given their contributions during the marriage and their circumstances at the time of the divorce. See Huck v. Huck, 734 P.2d 417, 420 (Utah 1986).

In the present case, the circumstances warrant the treatment given the inheritances by the trial court. Under any version of the facts, it is readily apparent that Kathryn paid the lion's share of the cost of the homes from money she received through inheritances. Moreover, the trial court was more than fair to Jeddy by crediting him with an equal share in the appreciation of the value of the homes despite his much lower contribution. Therefore, we conclude that the trial court exercised its discretion within the bounds set by our cases when it credited Kathryn with the inheritances she put into the homes.

Jeddy also disputes the trial court's factual determination of the amount each party contributed toward the purchase of the homes. There was conflicting evidence on this point at trial. Evidence fixed Kathryn's probable contribution at $55,000 to $60,000 and Jeddy's at $7,000 to $12,000. Jeddy's present challenge to the trial court's factual findings as to the relative contributions of the parties amounts to nothing more than an attempt to retry the matter on appeal. There was evidence supporting the positions of both parties. It was for the trial court to resolve the conflicts. We will not overturn such a factual resolution unless the appellant first marshals all the evidence supporting the trial court's finding and then demonstrates that that evidence, when compared to the contrary evidence, is so lacking as to warrant the conclusion that clear error has been committed. Utah R.Civ.P. 52(a); see Harline v. Campbell, 728 P.2d 980, 982 (Utah 1986); Scharf v. BMG Corp., 700 P.2d 1068, 1070 (Utah 1985). In the present case, Jeddy has not begun to meet this burden. Therefore, we reject his attack on the trial court's determination of the relative contributions of the parties.

Jeddy next attacks the trial court's findings as to the market value of the current home. Jeddy's expert witness testified that the house was worth $122,000, while Kathryn's testified that the value of the house was $112,000. The trial judge fixed the value of the house at $117,000. Based upon that finding, the appreciation in the value of the couple's successive homes was approximately $50,000. Jeddy argues that in fixing the value at $117,000, the court improperly "split" the difference between the values fixed by the experts. He argues that his expert should have been believed.

This argument, like the one that preceded it, is nothing but an attempt to have this Court substitute its judgment for that of the trial court on a contested factual issue. This we cannot do under Utah Rule of Civil Procedure 52(a). In apparent recognition of this proposition, Jeddy masks this claim as a legal argument by contending that the trial judge acted improperly in splitting the difference between the experts. That argument is, of course, utterly lacking in merit. It is elementary that a judge is not bound to believe one witness's testimony to the total exclusion of that of another witness. When acting as the trier of fact, the trial judge is entitled to give conflicting opinions whatever weight he or she deems appropriate. See Groen v. Tri-O-Inc., 667 P.2d 598, 603 (Utah 1983); see also Goodmundson v. Goodmundson, 201 Mont. 535, 655 P.2d 509, 511 (1982) (in adopting proposed values for marital assets, trial court may average conflicting values given by experts to arrive at an equitable solution). Therefore we hold that the district court did not abuse its discretion in determining that the value of the home was $117,000.

Jeddy next argues that the trial court improperly credited Kathryn with the 1982 tax deduction for the minor child because under the prayer for relief contained in her initial complaint in this action, she asked that Jeddy be allowed that deduction. Kathryn did not amend her complaint to change the prayer for relief; therefore, Jeddy argues, the trial court lacked the authority to award her the 1982 tax deduction. Whatever the state of the pleadings, the record indicates that at trial, the entitlement to the 1982 tax deduction became a matter of dispute between the parties and was adjudicated without objection. Under Utah Rule of Civil Procedure 15(b), a trial court is permitted to decide issues that are not raised by the pleadings when (i) they are tried by the parties and (ii) the failure to amend the initial pleadings to conform to the evidence in no way impairs the trial court's ability to resolve such an issue. Both of these requirements were met. We therefore conclude that it was proper for the trial judge to consider the issue.

Jeddy's other contentions regarding the trial court's property distribution lack merit. ¹

Jeddy next contends that the trial court abused its discretion by awarding plaintiff one dollar per year alimony. Alimony is to be awarded after considering three factors: the receiving spouse's financial condition and needs; the receiving spouse's ability to earn an adequate income; and the providing spouse's ability to provide support. Jones v. Jones, 700 P.2d at 1075. The record indicates that Kathryn received the majority of the assets of the marriage. However, she appears to have a relatively poor ability to earn an income sufficient to maintain as nearly as possible the standard of living that the parties enjoyed when married. Although working at the time of the divorce, during the course of her two decades of marriage to Jeddy, Kathryn was employed only episodically, for brief periods, and at low-paying jobs. She did not have the...