Nicholson v. Nicholson

• Decision Date: 24 August 2017
• Docket Number: No. 20151021-CA,20151021-CA
• Parties: Ronald J. NICHOLSON, Appellant, v. Paula Ann NICHOLSON, Appellee.
• Court: Utah Court of Appeals

405 P.3d 749

Ronald J. NICHOLSON, Appellant,

v.Paula Ann NICHOLSON, Appellee.

No. 20151021-CA

Court of Appeals of Utah.

Filed August 24, 2017

Samuel M. Barker and Jeffrey A. Callister, Murray, Attorneys for Appellant

Jennifer Neeley, Ogden, Attorney for Appellee

Judge Michele M. Christiansen authored this Opinion, in which Judges Gregory K. Orme and David N. Mortensen concurred.

Opinion

CHRISTIANSEN, Judge:

¶ 1 Ronald J. Nicholson appeals the district court's termination of alimony he had been receiving from his ex-wife Paula Ann Thomas, formerly known as Paula Ann Nicholson. The district court determined that modification of alimony was warranted by Thomas's retirement and that termination of alimony was proper because Nicholson's monthly income exceeded his reasonable monthly needs. We conclude that the court adequately considered the factors required by statute and therefore affirm.

BACKGROUND

¶ 2 Nicholson and Thomas married in 1975, separated in 1999, and filed for divorce in 2003. After Nicholson and Thomas stipulated to a settlement, a decree of divorce was entered in 2008, with retroactive effect to 2007. Under that settlement, Nicholson received one parcel of real property, the proceeds from the sale of a second parcel of real property, and three vehicles; Thomas in turn received one parcel of real property subject to a mortgage and three other vehicles. Thomas also agreed to pay $850 per month in alimony to Nicholson for a period equal to the length of the marriage—32 years. The parties agreed that "alimony will be terminated upon [Nicholson's] remarriage or cohabitation, or otherwise terminated or modified upon a material change of circumstances, including without limitation the parties' retirement[.]" The stipulation was incorporated into the decree of divorce.

¶ 3 Upon her retirement in 2014, Thomas sought modification or termination of her alimony obligation. After a two-day hearing, the district court ruled that modification of the divorce decree was appropriate, found that Nicholson's expenses did not exceed his income, and modified the divorce decree to eliminate the alimony obligation. Nicholson timely appealed.

ISSUES AND STANDARDS OF REVIEW

¶ 4 Nicholson first contends that the district court erred by failing to make or enter adequate findings regarding Thomas's ability to pay alimony. Where an appellant asserts that the district court's findings are legally inadequate to support its ruling, we review for correctness. See Fish v. Fish, 2016 UT App 125, ¶ 5, 379 P.3d 882 ; Robinson v. Robinson, 2010 UT App 96, ¶ 7, 232 P.3d 1081.

¶ 5 Nicholson further contends that the district court erred "in terminating alimony based on [his] current needs and ability to provide for those current needs when [his] needs and ability to provide have not changed since the time of the divorce." Insofar as this is a challenge to the district court's findings of fact, we review for clear error; where the district court's ruling relies on its interpretation of the law, we review for correctness. See Olsen v. Olsen, 2007 UT App 296, ¶ 7, 169 P.3d 765.

ANALYSIS

¶ 6 The primary purpose of an alimony award, at least an initial one, is to "enable the receiving spouse to maintain as nearly as possible the standard of living enjoyed during the marriage and to prevent the spouse from becoming a public charge." Paffel v. Paffel, 732 P.2d 96, 100 (Utah 1986) ; accord Connell v. Connell, 2010 UT App 139, ¶ 9, 233 P.3d 836. To achieve this end, the Utah Code requires a court to consider several factors when calculating the appropriate amount of alimony to award:

The court shall consider at least 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;

(iv) the length of the marriage;

(v) whether the recipient spouse has custody of minor children requiring support;

(vi) whether the recipient spouse worked in a business owned or operated by the payor spouse; and

(vii) whether the recipient spouse directly contributed to any increase in the payor spouse's skill by paying for education received by the payor spouse or enabling the payor spouse to attend school during the marriage.

Utah Code Ann. § 30-3-5(8)(a) (LexisNexis 2013).¹

¶ 7 After entering an alimony award, the district court retains "continuing jurisdiction to make substantive changes and new orders regarding alimony" when it finds that there has been "a substantial material change in circumstances not foreseeable at the time of the divorce." Id.§ 30-3-5(8)(i)(i); accord Williamson v. Williamson, 1999 UT App 219, ¶ 8, 983 P.2d 1103. "Once that finding has been made, the court must then consider at least the following factors in determining [a new alimony award]: (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." Williamson, 1999 UT App 219, ¶ 8, 983 P.2d 1103 (citation and internal quotation marks omitted). "These factors apply not only to an initial award of alimony, but also to a redetermination of alimony during a modification proceeding." Id.

¶ 8 In short, once a court has determined that modification is appropriate pursuant to section 30-3-5(8)(i)(i), it must then consider at least the factors set forth in section 30-3-5(8)(a).² See, e.g., Busche v. Busche, 2012 UT App 16, ¶ 13, 272 P.3d 748 (explaining that the substantial-change-of-circumstances determination is a threshold step to be conducted before, and separately from, consideration of the statutory factors).

I. Thomas's Ability to Pay Alimony

¶ 9 Nicholson first contends that the district court's findings were "insufficient to support terminating alimony because [the court] made no findings as to [Thomas's] ability to provide continuing support."

¶ 10 "The standard for findings in modification proceedings is well established." Williamson, 1999 UT App 219, ¶ 9, 983 P.2d 1103. The district court "must make findings on all material issues, and its failure to delineate what circumstances have changed and why these changes support the modification made in the prior divorce decree constitutes reversible error unless the facts in the record are clear, uncontroverted and only support the judgment." Whitehouse v. Whitehouse, 790 P.2d 57, 61 (Utah Ct. App. 1990). The findings "must be sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached." Id.

¶ 11 In this case, the district court determined that, although Thomas's retirement was foreseeable and in fact foreseen at the time of the divorce, the specific language of the parties' stipulation allowed for termination or modification of alimony based upon her retirement.³ The court noted that Thomas had not taken an early retirement; rather, "she retired at a reasonable retirement age." The court ultimately ruled that modification was appropriate and turned to the consideration of the factors listed in section 30-3-5(8)(a). But in its analysis of the factors, the court did not enter detailed written findings as to Thomas's "ability ... to provide support." See Utah Code Ann. § 30-3-5(8)(a)(iii) (LexisNexis 2013).

¶ 12 In isolation, the failure to enter written findings quantifying a certain factor does not necessarily indicate that a district court failed to consider that factor; rather, the lack of specific findings may be the result of the district court's conclusion that the factor is not a "material issue[ ]" under the circumstances of the case at hand. See Whitehouse, 790 P.2d at 61 (noting the court's obligation to "make findings on all material issues" (emphasis added) (citation and internal quotation marks omitted)). And the district court's decision here, considered as a whole, shows that this is exactly what occurred.

¶ 13 The district court first determined that Nicholson did not have unmet financial needs. See Utah Code Ann. § 30-3-5(8)(a)(i), (ii) (requiring the court to consider the recipient spouse's financial need and ability to meet that need). As a result, the court ruled that Thomas's "income and assets are irrelevant to the [modification] inquiry." In other words, it appears the district court reasoned that, because the recipient spouse—Nicholson—had no unmet need, further consideration of and explicit findings regarding the payor spouse's ability to pay were not material to the court's analysis.

¶ 14 We agree with the district court's legal reasoning. Though it would have been the best practice and could have facilitated review of the decision on appeal, the district court did not first need to make explicit findings as to how much Thomas could afford to pay if there was no demonstrated financial need on Nicholson's part. See Dobson v. Dobson, 2012 UT App 373, ¶ 24, 294 P.3d 591 (noting that "the trial court correctly indicated that without a compelling and extraordinary reason, it could not award [the recipient spouse] more alimony than her established needs, regardless of [the payor spouse's] ability to pay"); see also Roberts v. Roberts, 2014 UT App 211, ¶ 14, 335 P.3d 378 (explaining that "regardless of the payor spouse's ability to pay more, the recipient spouse's demonstrated need must constitute the maximum permissible alimony award" (brackets, ellipsis, citation, and internal quotation marks omitted)); Sellers v. Sellers, 2010 UT App 393, ¶ 3, 246 P.3d 173 (agreeing that "unless the court determines that the party seeking alimony has insufficient income to meet his or her own needs, there is no occasion to consider the other section 30-3-5(8)(a) alimony factors"). Even in the absence of ability-to-pay findings regarding Thomas, the court's ruling here is "sufficiently detailed and include[s] enough subsidiary facts to disclose...