Noble v. Noble

• Decision Date: 15 August 1988
• Docket Number: 20401,Nos. 19934,s. 19934
• Parties: V. Glen NOBLE, Plaintiff and Appellant, v. Elaine Hanson NOBLE, Defendant and Appellee. Elaine Hanson NOBLE, Plaintiff and Appellant, v. V. Glen NOBLE, Defendant and Appellee.
• Court: Utah Supreme Court

Page 1369

761 P.2d 1369

V. Glen NOBLE, Plaintiff and Appellant, v. Elaine Hanson NOBLE, Defendant and Appellee.

Elaine Hanson NOBLE, Plaintiff and Appellant, v. V. Glen NOBLE, Defendant and Appellee.

Nos. 19934, 20401.

Supreme Court of Utah.

Aug. 15, 1988.

Jackson B. Howard, Provo, Raymond M. Berry, Kent M. Kasting, Salt Lake City, for V. Glen Noble.

W. Eugene Hansen, Salt Lake City, for Elaine Hanson Noble.

ZIMMERMAN, Justice:

In this decision, we dispose of two consolidated appeals. The first arises from a divorce action between Elaine Noble and Glen Noble in which a divorce decree was granted to Elaine. Glen seeks to modify the alimony award and property division. We affirm the decree but remand for additional findings. The second appeal arises from the summary judgment dismissing Elaine's separately filed tort action against Glen based upon his having shot her. Elaine seeks a reversal of the order of dismissal. We reverse the summary judgment and reinstate her intentional tort claims.

Elaine and Glen were married in July of 1977, when Elaine was thirty-four years old and Glen was fifty-eight. This was the second marriage for each, and no children were born of the marriage. On August 18, 1980, while Elaine was lying on their bed, Glen shot her in the head at close range with a .22 caliber rifle. ¹ He then attempted to commit suicide by shooting himself under the chin with the same rifle. Approximately seven months later, Glen initiated a divorce action in the Fourth Judicial District. That case was assigned to Judge Tibbs, sitting by special appointment. Elaine counterclaimed for divorce on grounds that Glen had physically abused her, leaving her unable to work. Elaine later filed a personal injury action against Glen. That case was assigned to Judge Ballif in the Fourth Judicial District. Elaine asserted claims based on negligence, battery, and intentional infliction of emotional distress. In April of 1983, Judge Ballif entered partial summary judgment for Glen, ruling that Elaine's negligence claim was barred by the doctrine of interspousal immunity. Elaine filed a notice of intent to appeal the dismissal of her negligence claim and continued to pursue the intentional tort claims.

The divorce action was tried before Judge Tibbs on December 22, 1983, and a divorce decree in Elaine's favor was entered. In fixing the alimony and the property division, Judge Tibbs expressly took into account Elaine's increased living expenses and decreased earning ability resulting from the disabilities caused by the shooting.

Glen then brought a motion for summary judgment in the tort action pending before Judge Ballif, arguing that Elaine's intentional tort claims had, in effect, been decided in the divorce action because the alimony and property awards were to some extent intended to compensate for the shooting injuries. Judge Ballif agreed and, relying on the doctrine of res judicata, dismissed Elaine's tort action in its entirety.

Glen appeals from the divorce decree. Elaine appeals from the summary judgment dismissing her tort claims. We will discuss the two appeals separately, considering first the challenge to the divorce decree and then the attack on the dismissal of the tort action. At the outset, we emphasize that the issues in these appeals probably would not have arisen and the resolution of both cases would have been greatly expedited had the tort case been tried before the divorce action. As a general rule, that is how such cases should be handled, and it is the course of action that should have been followed here. ²

I. The Divorce Action

In the divorce decree, Judge Tibbs awarded Elaine alimony of $750 per month, the house she brought into the marriage, a $264,000 share of the approximately $800,000 in assets that Glen brought to the marriage, and $10,000 in attorney fees. ³

Glen's first argument is that Judge Tibbs improperly considered Elaine's tort claims in the divorce action. We held in Walther v. Walther, 709 P.2d 387, 388 (Utah 1985), that it is improper to try a tort claim, as such, within a divorce action. Accord Lord v. Shaw, 665 P.2d 1288, 1291 (Utah 1983). Tort claims, which are legal in nature, should be kept separate from divorce actions, which are equitable in nature. As a practical matter, if spouses have tort claims pending against each other which are likely to have a bearing on the outcome of the divorce action, those claims should be resolved prior to the divorce proceedings. ⁴

In this case, Glen contends that Judge Tibbs combined the two proceedings and used the property division and alimony award as a means of giving Elaine damages properly attributable to her tort claims. The record does not support this contention. Judge Tibbs was fully informed that the tort claims were being tried in a separate action before Judge Ballif. For that reason, Judge Tibbs stated in his findings and conclusions that he had avoided consideration of the merits of the tort claims qua tort claims, and our review of the record provides us with no cause to dispute that assertion. It is true that some of the facts relevant to the tort claims were considered in the divorce proceeding, including Elaine's medical and living expenses incurred as a result of the shooting, as well as Glen's role in causing her injuries. However, it was not improper to take those factors into account in the context of the divorce action. As we explained in Walther, 709 P.2d at 388 (citing Anderson v. Anderson, 104 Utah 104, 109, 138 P.2d 252, 254 (1943)), "[I]njuries and attendant medical expenses [caused by a spouse's tort] may be considered" in deciding the level of need of the other spouse in a divorce proceeding. And because Elaine's counterclaim for divorce was based on Glen's cruelty to her, it was proper for Judge Tibbs to consider the issue of Glen's fault in causing those injuries. Merely because Judge Tibbs considered facts relevant to the divorce action that were also relevant to the tort action does not mean that he impermissibly adjudicated the tort claims in the divorce action.

Glen's second argument, which is something of a variation on the theme of the first, is that Judge Tibbs abused his discretion in setting the amount of the alimony award and in dividing the property. He contends that the award and distribution were unjustifiably generous to Elaine, particularly in light of the short duration of the marriage, and that the only explanation for this generosity is an intent to punish Glen for the shooting and to compensate Elaine for her injuries.

We first address Glen's challenge to the $750-per-month alimony award. We accord trial courts broad discretion in awarding alimony so long as the trial court exercises its discretion "in accordance with the standards that have been set by this Court." Jones v. Jones, 700 P.2d 1072, 1074 (Utah 1985). We require that a trial court, in setting alimony, attempt to provide support for the receiving spouse sufficient to maintain that spouse as nearly as possible at the standard of living enjoyed during the marriage. In determining the amount of the award necessary to accomplish this aim, the trial court must make adequate findings and conclusions demonstrating that it has considered three factors: (i) the financial condition and needs of the party seeking alimony, (ii) that party's ability to produce a sufficient income, and (iii) the ability of the other party to provide support. Davis v. Davis, 749 P.2d 647, 649 (Utah 1988); Jones v. Jones, 700 P.2d at 1074-75; see Utah Code Ann. § 30-3-5 (1984 & Supp.1988). In weighing those three factors, it is entirely appropriate for the trial court to take into account whether physical or mental disabilities arising during the marriage, regardless of their cause, have made the receiving party's needs greater or reduced that party's ability to produce an income. The fact that such disabilities may have resulted from the tortious acts of another, including the divorcing spouse, certainly does not preclude the trial court from considering those disabilities. We said as much in Walther, 709 P.2d at 388.

Applying those rules to this case, the disabilities Elaine suffered as a result of her injuries at Glen's hands were an important consideration in assessing the first two Jones factors--Elaine's financial condition and needs and her ability to produce an income. Judge Tibbs specifically found that Elaine had suffered permanent injuries which left her unemployable, unable to operate a motor vehicle, and "totally and permanently disabled." Evidence was presented that as a result, Elaine needed approximately $2,600 per month to meet her expenses. Glen has not challenged those findings of fact. Applying the third Jones factor, Glen's ability to provide support, the court found that Glen's present income was insufficient to provide for his needs and still meet Elaine's needs. It set alimony at only $750 per month, but also considered its finding of Elaine's need for much higher alimony when it fixed the property division, as will be discussed below.

Judge Tibbs made the required findings and conclusions demonstrating his consideration of the Jones factors. He quite properly took into account Elaine's needs and disabilities resulting from her injuries. By no stretch of the imagination could the $750-per-month award be deemed excessive, and we reject Glen's challenge to the award as meritless.

We next consider Glen's challenge to the property division. This is a variation on the argument advanced regarding the alimony award. After finding that Elaine needed $2,600 per month for expenses and was unemployable and that Glen could afford only $750 per month in alimony, the judge also found that because of the difference in the parties' ages, Elaine could be expected to outlive Glen by some twenty-five years, years during which she would be without alimony and otherwise unable to earn an income. In light of these circumstances, the...