Openshaw v. Openshaw, 17369
| Decision Date | 18 December 1981 |
| Docket Number | No. 17369,17369 |
| Citation | 639 P.2d 177 |
| Parties | Hope H. OPENSHAW (Wallace), Plaintiff and Appellant, v. Richard Creed OPENSHAW, Defendant and Respondent. |
| Court | Utah Supreme Court |
L. E. Midgley, Salt Lake City, for Openshaw (Wallace).
Brian M. Barnard, Salt Lake City, for Openshaw.
Plaintiff appeals a modification in a divorce decree reducing the monthly amount of child support and allowing defendant one child as a dependent for income tax purposes.
After 17 years of marriage and two children, the parties were divorced on March 4, 1977. Included in the decree of divorce was a provision that defendant pay child support as follows:
That the Defendant be and is herewith ordered to pay to Plaintiff the sum of $100.00 per month per child, or a total of $200.00 per month as support for said minor children, said payments to be made one-half on the 1st and one-half on the 15th of each month until said children reach the age of 18.
Defendant be and is herewith further ordered to pay to Plaintiff 50% of any increase in income or earnings over his present take-home earnings of $475.00, as additional support for said children, up to $800.00 per month earnings, or $200.00 per child, or a total of $400.00 per month as support for said children.
Defendant was also "ordered to reimburse plaintiff for prescriptions required for the treatment of (minor child) Thomas for his asthma and blood disease." Plaintiff was authorized to claim both children as deductions for income tax purposes.
In early 1980, plaintiff petitioned the court, inter alia, to reduce arrearages in child support to judgment and to modify the decree to require increased child support ($250 per month per child). Defendant filed a cross petition requesting that the decree be modified to set a specific and permanent amount for child support and to allow him to claim the minor children as dependents for income tax purposes.
On March 14, 1980, the court granted judgment against defendant for $1,200 in support arrearages plus $100 attorney's fees. On March 28, 1980, the cross petitions for modification were heard. 1 Evidence was proferred by both parties. Financial statements of both parties were submitted along with plaintiff's paycheck stubs. The court reviewed the pleadings and the matter was argued by counsel.
After hearing the evidence, the court ruled that there had been a substantial change in circumstances. The court thereupon modified the decree. Child support was set at $175 per month per child and defendant was allowed to claim both children as dependents for tax purposes. Thereafter, the hearing was reopened and the order was modified to allow one dependent each.
On appeal, plaintiff challenges the factual findings of the trial court. The general rule has been stated as follows:
The modification of divorce decree is a matter of equity, and it is the duty and prerogative of this Court to review both the facts and the law. However, it is likewise true that on review this Court will accord considerable deference to the judgment of the trial court due to its advantaged position and will not disturb the action of that court unless the evidence clearly preponderates to the contrary, or the trial court abuses its discretion or misapplies principles of law. (Citations omitted.) 2
Clearly there was a material change in the circumstances of the parties. The health of the minor child Thomas had improved such that plaintiff could work. Plaintiff had a substantial income 3 whereas at the time of the divorce she had none. Plaintiff had voluntarily increased her house payments from $212.00 to $343.45 per month. The defendant had remarried and was legally obligated to support his step-daughter. At the time of hearing, defendant was employed at Kennecott Copper Corporation, earning $1,209.46 net per month. Through his employment,...
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