Rayburn v. Rayburn, 860022-CA

• Decision Date: 29 May 1987
• Docket Number: No. 860022-CA,860022-CA
• Parties: Catherine RAYBURN, Plaintiff and Respondent, v. Robert L. RAYBURN, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 238

738 P.2d 238

Catherine RAYBURN, Plaintiff and Respondent, v. Robert L. RAYBURN, Defendant and Appellant.

No. 860022-CA.

Court of Appeals of Utah.

May 29, 1987.

Gaylen S. Young, Jr., Salt Lake City, for defendant and appellant.

B.L. Dart, Salt Lake City, for plaintiff and respondent.

Before ORME, BENCH and JACKSON, JJ.

OPINION

ORME, Judge:

In this divorce action, defendant Robert L. Rayburn appeals the valuation and distribution of a retirement plan and an award of a $45,000 property settlement to offset his medical degree. We affirm the trial court's basic disposition, but require amendment of the decree insofar as the $45,000 award is concerned.

FACTUAL BACKGROUND

Plaintiff Catherine Rayburn and Dr. Rayburn were married in Florida on June 20, 1972. Earlier that same day, Dr. Rayburn had obtained his medical degree from the University of Florida. At the time, Mrs. Rayburn had a masters degree in zoology and was employed as a research associate at the University of Florida. The couple moved to Houston, Texas where Dr. Rayburn completed a one year internship at Baylor University. Dr. Rayburn earned $8,000 to $9,000 during the internship. Mrs. Rayburn also worked during that year, earning approximately $7,200. The couple returned to Florida where Dr. Rayburn completed a three-year residency, earning approximately $11,000 to $13,500 per year. Mrs. Rayburn worked for a short time in Florida, but upon the birth of their first child, she stopped working full-time and worked only occasionally, and on a part-time basis, throughout the rest of the marriage.

After the residency, the family moved to San Antonio, where Dr. Rayburn completed two years of military service. During the five-year period of the internship, the residency, and his military service, Dr. Rayburn acted as the primary financial provider for the family. Mrs. Rayburn stayed at home, for the most part, to raise their eventual three children.

After military service, the family moved to Salt Lake City where Dr. Rayburn joined the staff of the Primary Children's Medical Center as a pediatric-anesthesiologist. In October 1982, Mrs. Rayburn filed for a divorce.

Trial was held on July 18 and 19, 1983. At the time of trial, Dr. Rayburn was earning approximately $125,000 a year. After the two day trial, the court issued a memorandum decision. In the decision, the court determined to award custody of the three minor children, ages 9, 5, and 2, to Mrs. Rayburn and to order Dr. Rayburn to pay child support in the amount of $400 per child per month. Apparently overlooking the exact sequence of events on the Rayburns' wedding day, the court found the husband's medical degree to be a marital asset and ordered Dr. Rayburn to pay Mrs. Rayburn $45,000, payable at $750 a month, as her share of the asset and to "maintain her lifestyle for a period of adjustment." The decision would have awarded Dr. Rayburn all of his retirement fund.

About two weeks later, the court issued a supplemental decision in which the court altered its earlier decision on the retirement plan. The court, "in order to make a more equitable division of property," ordered Dr. Rayburn to pay one-half the net present value of the retirement plan, $56,850, to Mrs. Rayburn in five annual installments of $11,370 plus interest. The court entered Findings of Fact, Conclusions of Law, and a decree on September 15, 1983. The decree expressly awarded no alimony and set December 15, 1983, as the effective date of the divorce.

Dr. Rayburn promptly filed a motion for relief from judgment or for a new trial. Dr. Rayburn claimed the trial court failed to consider the drastic tax consequences of placing a present value on the retirement plan and awarding half of that to his wife. The court took Dr. Rayburn's motion under advisement. On December 9, 1983, the court issued another memorandum decision. This decision provided for amendment of the decree in such terms as would permit the five retirement plan payments to be treated as alimony for tax purposes. The court entered a second set of findings, conclusions, and decree on February 28, 1984. The second decree again awarded no alimony as such, made the embellishment for tax purposes, and set February 28 as the effective date of the divorce. Dr. Rayburn retained new counsel, who filed a motion for relief from the new judgment or a new trial. The court denied the motion and Dr. Rayburn appealed.

On appeal, Dr. Rayburn claims the court erroneously placed a high value on the retirement plan without considering the tax consequences. Dr. Rayburn also claims the court erred in finding the medical degree to be a marital asset and placing a value on it without any supporting evidence.

RECORD ON APPEAL

Dr. Rayburn ordered a transcript on appeal of only 30 pages, representing a tiny fraction of the testimony offered at trial. Under Rule 11(e)(2) of the Rules of the Utah Court of Appeals and the predecessor Utah Rules of Appellate Procedure, "If the appellant intends to urge on appeal that a finding or conclusion is unsupported by or is contrary to the evidence, the appellant shall include in the record a transcript of all evidence relevant to such finding or conclusion." Since the transcript provided by the appellant is insufficient to allow a review of the evidence to determine the propriety of the findings, this court accepts the trial court's Findings of Fact as true ¹ and only evaluates the legal correctness of the two disputed dispositions. ² As indicated, the disputes concern the $45,000 property settlement reflecting Mrs. Rayburn's "share" of her husband's medical degree and the payments for Mrs. Rayburn's one-half interest in the present value of the doctor's retirement plan. ³

THE MEDICAL DEGREE

Recently this court held that an advanced degree or professional license is not marital property subject to division upon divorce. Petersen v. Petersen, 737 P.2d 237 (Utah App.1987). However, an advanced degree often accompanies a disparity in earning potential that is appropriately considered as a factor in alimony analysis. See id., 243. We reaffirm our holding in Petersen and analyze the instant appeal under the same analysis employed in that case.

The cash settlement of $45,000 payable in monthly installments of $750 cannot be sustained under Petersen as a property settlement, but payments of $750 per month for a five-year period are properly affirmed as alimony. ⁴ Criteria considered in determining a reasonable award of support must include the financial conditions and needs of the spouse in need of support, the ability of that spouse to produce sufficient income for his or her own support, and the ability of the other spouse to provide support. Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985). See Paffel v. Paffel, 732 P.2d 96, 100-101 (Utah 1986) (failure to consider these three factors constitutes an abuse of discretion). Although characterizing the monthly payments as a property settlement, the trial court expressly found factors that readily meet the criteria listed in Jones.

As for Mrs. Rayburn's need for support and her ability to produce sufficient income, the trial court found that Mrs. Rayburn was presently unemployed, but that she had been employed and was well-educated, having acquired bachelor's and master's degrees. However, with minor children residing at home and not yet in school, Mrs. Rayburn was reluctant to return immediately to the full-time workforce. In addition, the court accepted Mrs. Rayburn's testimony that in order to bring her employment skills to a satisfactory level, she needed to return to school and obtain further education "to complement her current education." ⁵ As for Dr. Rayburn's ability to provide support, the trial court found that Dr. Rayburn was well-educated, having obtained an M.D. degree, and that he had a successful practice as a pediatric-anesthesiologist, earning a projected $125,000 for 1983.

In its first memorandum decision, the trial court characterized the monthly payments for Mrs. Rayburn as necessary "to maintain her life style for a period of adjustment." The 5-year period corresponded to the amount of time it would take for Mrs. Rayburn to complete her additional education on a part-time basis and until the parties' youngest child was in school all day. ⁶

We acknowledge that there will be situations where an award of non-terminable rehabilitative or reimbursement alimony would be appropriate. See Petersen v. Petersen, 737 P.2d at 242 n. 4. However, this is not such a case. Dr. Rayburn acquired his medical degree before the parties were married. Although Mrs. Rayburn worked periodically during the marriage, she did not endure substantial financial sacrifices or defer her own education to help him obtain the degree. In addition, Mrs. Rayburn shared the financial rewards permitted by her husband's advanced degree for several years. Those rewards also resulted in the accumulation of considerable real and personal property during their marriage, which was equitably divided upon their divorce. The award of temporary alimony, at $750 per month for a maximum of five years, ⁷ adequately meets Mrs. Rayburn's support needs and is readily sustainable...