Rasband v. Rasband, 870081-CA

• Decision Date: 18 April 1988
• Docket Number: No. 870081-CA,870081-CA
• Citation: 752 P.2d 1331
• Parties: Russell Bourne RASBAND, Plaintiff and Respondent, v. Carol T. RASBAND, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 1331

752 P.2d 1331

Russell Bourne RASBAND, Plaintiff and Respondent, v. Carol T. RASBAND, Defendant and Appellant.

No. 870081-CA.

Court of Appeals of Utah.

April 18, 1988.

David S. Dolowitz (argued), Cohne, Rappaport & Segal, Salt Lake City, for defendant and appellant.

Pete N. Vlahos (argued), Vlahos & Sharp, Ogden, for plaintiff and respondent.

Before DAVIDSON, GREENWOOD and JACKSON, JJ.

OPINION

JACKSON, Judge:

Carol Rasband's appeal challenges the alimony award, the property division, and the legal fee award in the parties' February, 1987 judgment and decree of divorce. We affirm in part and vacate and remand in part.

The parties were married in 1957, a few months after graduating from high school. Four children were born as issue of the marriage. The youngest child was emancipated two months after entry of the decree; another is an adult incapable of self-support. Mrs. Rasband worked occasionally at low-skilled, minimum wage jobs and did some typing to help Mr. Rasband in his work. He was a manager of insurance agents from 1977 until 1984 when he elected to work as an independent agent.

Their assets and debts were divided about evenly by the trial court. Equality was to be ultimately achieved by sale of the family home within three years (to be used by appellant in the interim), with the net equity divided equally at that time after reimbursement of respondent for paying $9,992 in family debts and payment to him of an additional $5,400. Mr. Rasband was ordered to pay $250 in monthly support for the handicapped adult child, pending further review of her condition. ¹ Mrs. Rasband was awarded automatically-decreasing monthly alimony of $800 for one year, decreasing to $700 for two years, then to $350 for five years, and ending at $1 per year. She requested payment by respondent of $7,970 in legal expenses and was awarded $1,000 of that request.

ALIMONY

This court will not disturb the trial court's award of spousal support absent a showing of a clear and prejudicial abuse of discretion. Paffel v. Paffel, 732 P.2d 96, 100 (Utah 1986). In this appeal, Mrs. Rasband asserts that the trial court committed such an abuse in determining the amount of alimony and in providing for its automatic decline. We agree on both of these related points.

An alimony award should, to the extent possible, equalize the parties' respective post-divorce living standards and maintain them at a level as close as possible to that standard of living enjoyed during the marriage. Gardner v. Gardner, 748 P.2d 1076, 1081 (Utah 1988); Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985). See also Davis v. Davis, 749 P.2d 647, 649 (Utah 1988). The Utah Supreme Court has articulated three factors that must be considered by the trial court in determining a reasonable alimony award: (1) the financial conditions and needs of the requesting spouse; (2) the ability of the requesting spouse to produce a sufficient income for himself or herself; and (3) the ability of the other spouse to provide support. Gardner, 748 P.2d at 1081; Olson v. Olson, 704 P.2d 564, 566 (Utah 1985); Jones, 700 P.2d at 1075. Failure to consider these factors constitutes an abuse of the trial court's discretion. Paffel, 732 P.2d at 101.

Based on our review of the record, we must conclude that the trial court, insetting the first year of support at only $800 per month and in decreasing it to $1 over eight years, failed to consider Mr. Rasband's clear ability to provide support and Mrs. Rasband's severely limited ability to meet her own established financial needs. The parties' thirty-year marriage began as they graduated from high school. Mr. Rasband produces about $7,000 gross income per month; Mrs. Rasband has no income. Their assets consisted of the insurance business, a large home, vehicles and personal property, all acquired through joint efforts. He contributed his income and labor; although Mrs. Rasband has average typing skills, she primarily contributed her unpaid labor. Her homemaking and child-rearing efforts advanced his career pursuits. Both parties are functioning adults with health problems not untypical of persons nearing fifty years of age. The trial court found that Mr. Rasband's net monthly earnings (after business expenses but before taxes) were $3,800 and that his needs were $1,500 per month, "including payment of the family debts." Mrs. Rasband's needs were specifically found to be between $1,250 and $1,400 per month. These findings have not been challenged on appeal.

The disparity between Mr. Rasband's annual net income of $45,600 and her zero income is striking. During the one year of $800 monthly alimony awarded by the trial court, his income would be $36,000 and hers only $9,600. His standard of living will be much nearer that enjoyed during the marriage than will hers. This disparity is augmented by his ability to expense some personal use items through his business and by her additional expense in caring for their adult daughter.

The trial court made only one vague, conclusory finding regarding Mrs. Rasband's present and future ability to produce a sufficient income to meet her needs, i.e., that she is "capable of meaningful employment in the future." It is this finding that apparently formed the basis for the court's determination of the amount and the nonpermanence of the alimony awarded. However, as the Utah Supreme Court has recently pointed out,

[t]he findings of fact must show that the court's judgment or decree "follows logically from, and is supported by, the evidence." Smith v. Smith, 726 P.2d 423, 426 (Utah 1986). The findings "should be sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached."

Acton v. Deliran, 737 P.2d 996, 999 (Utah 1987) (quoting Rucker v. Dalton, 598 P.2d 1336, 1338 (Utah 1979)). See also Parks v. Zions First Nat'l Bank, 673 P.2d 590, 601 (Utah 1983) (findings of fact must clearly indicate the mind of the court). ²

Mr. Rasband is clearly capable of paying support sufficient to meet Mrs. Rasband's entire determined living expense need, now and in the future, if she is unable to do so on her own. Detailed findings regarding her earning capacity are critically important to this reviewing court since the record evidence indicates that appellant's present and future earning capacity is minimal. She had no earnings in the year before trial; she has only a high school education and average job skills to market. Her ability to work is impaired by the disability of their adult daughter. She will have difficulty finding and retaining a full-time job. If employed, her earnings would undoubtedly be meager for a long period, given her lack of education, training or work experience. ³

The facts and the trial court disposition in this case are very similar to those in Jones, where the alimony award decreased from $1,000 to $500 over ten years. The parties were married for thirty years, raised four children, built a retail pharmacy business, and enjoyed a comfortable lifestyle. The tangible assets were divided, but Mr. Jones received the income-producing business. Mrs. Jones had no outside income and no income-producing assets. She was awarded a home, but had to pay the home mortgage, probably necessitating its sale. She was 52, had no professional training and limited marketable skills. The court said it was unrealistic to assume that she would be able to enter the job market and support herself in the style they had enjoyed. The incorporated business generated profits of about $90,000 annually but the husband drew only $45,000 salary, thereby providing the husband with additional discretionary income in the business. As the Utah Supreme Court concluded:

This is simply not the sort of situation in which a decreasing rehabilitative alimony award is appropriate. The husband operates a financially successful business, built up over the course of the marriage through the joint efforts of both the husband and the wife. These facts clearly call for some form of continuing spousal maintenance.

Jones, 700 P.2d at 1076.

Although Mr. Rasband does not have the amount of discretionary income Mr. Jones did, the award herein leaves Mr. Rasband with some discretionary income and Mrs. Rasband with none. The lower court found $45,000 of disposable income. He needs $18,000 annually and she needs $16,800, for a total of $34,800. This leaves him with $10,000 annual discretionary income, in addition to the advantage he enjoys by being able to expense some personal living expenses through the business. These facts appear to warrant permanent alimony in a monthly amount greater than $800.

Under these circumstances, the amount of nonpermanent, declining alimony awarded to Carol Rasband creates a situation comparable to the meager award in Higley v. Higley, 676 P.2d 379 (Utah 1983), and the non-award in Canning v. Canning, 744 P.2d 325 (Utah App.1987). When this is coupled with the lack of adequate findings regarding her current and future ability to produce an income that--together with alimony--will meet her monthly need of $1,250-$1,400, the trial court's award is a clear and prejudicial abuse of discretion.

Although this court has the power to modify the amount of alimony awarded in the decree, the lack of proper findings prevents us from doing so. See Higley, 676 P.2d at 382; Canning, 744 P.2d at 327. We thus vacate the portion of the judgment below that sets the amounts and duration of the decreasing alimony award and remand for adequate findings ⁴ by the trial court and entry of new judgment and decree provisions awarding permanent alimony.

PROPERTY DISTRIBUTION

The trial court in a divorce action has considerable discretion in equitably adjusting the financial and property interests of the parties. Argyle v. Argyle, 688 P.2d 468, 470 (Utah 1984); Lee v. Lee, 744 P.2d 1378, 1380 (Utah App.1987). Because the court's distribution of...