Rehn v. Rehn

Decision Date19 February 1999
Docket NumberNo. 971700-CA,971700-CA
Citation974 P.2d 306
Parties363 Utah Adv. Rep. 8, 1999 UT App 41 Mary J. REHN, Appellee, v. Charles C. REHN, Appellant.
CourtUtah Court of Appeals

Steve S. Christensen, Salt Lake City, for Appellant.

Terry L. Cathcart, Bountiful, for Appellee.

Before Judges WILKINS, GREENWOOD, and BILLINGS.

OPINION

WILKINS, Presiding Judge:

¶1 Appellant Charles C. Rehn appeals the trial court's decree of divorce, challenging the court's awards of alimony, child support, debt allocation and attorney fees, as well as the trial court's decision precluding his expert witness from testifying. We affirm in part and reverse and remand in part.

BACKGROUND

¶2 Charles and Mary J. Rehn divorced on September 26, 1997, following a twenty-year marriage. Two children, who at the time of trial were nine and six years old, were born of the marriage.

¶3 Before trial, the court entered a scheduling order directing the parties to exchange witness lists "as per the rules." Two days before trial, Mr. Rehn informed Ms. Rehn that he intended to call a vocational expert who would testify as to Ms. Rehn's employment opportunities for purposes of determining alimony. Following this, on the day before trial, the parties agreed to a continuance. Accordingly, Mr. Rehn's attorney set a new trial date and immediately called Ms. Rehn's attorney to inform him. However, Ms. Rehn's counsel refused to continue the case, indicating he was going to trial the next day.

¶4 At trial, the court refused to allow appellant's witness to testify. It ruled that because appellant failed to disclose the witness until one day prior to trial, the disclosure was "untimely" and would inevitably "prejudice" Ms. Rehn as she would be unable to adequately consult with a counter-expert within twenty-four hours. Thereafter, the court entered its findings of fact, conclusions of law, and decree of divorce. The court awarded joint legal and physical custody of the children giving Mr. Rehn visitation rights pursuant to Utah Code Ann. § 30-3-35 (1995). Moreover, the court ordered Mr. Rehn to pay Ms. Rehn $1200 per month alimony on a permanent basis, child support in the amount of $1045 per month which it determined using a sole custody worksheet, 80% of the parties' $19,000 tax debt, and $6,880 of Ms. Rehn's attorney fees.

¶5 Appellant now challenges the adequacy of the court's findings regarding alimony, child support, debt allocation and attorney fees. In addition, he seeks a new trial based on the court's exclusion of his expert witness.

I. ADEQUACY OF TRIAL COURT'S FINDINGS
1. Alimony

¶6 First, appellant challenges the adequacy of the trial court's findings underlying its alimony award. In determining whether to award alimony and in setting the amount, a trial court must consider the needs of the recipient spouse; the earning capacity of the recipient spouse; the ability of the obligor spouse to provide support; and, the length of the marriage. See Utah Code Ann. § 30-3-5(7)(a)(i)-(iv) (1998); Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985); see generally Childs v. Childs, 967 P.2d 942 (Utah Ct.App.1998). "Failure to consider these factors constitutes an abuse of discretion," Stevens v. Stevens, 754 P.2d 952, 958-59 (Utah Ct.App.1988), resulting in reversal "unless pertinent facts in the record are clear, uncontroverted, and capable of supporting only a finding in favor of the judgment." Schaumberg v. Schaumberg, 875 P.2d 598, 602 (Utah Ct.App.1994). Moreover, the trial court must make detailed findings on all material issues, i.e. the Jones factors, which "should ... include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached." Stevens, 754 P.2d at 958 (citation omitted).

¶7 As to the first factor, we stated in Baker that a trial court may not "merely restate [the recipient spouse's] testimony [regarding] her monthly expenses...." Baker v. Baker, 866 P.2d 540, 546 (Utah Ct.App.1993). The court must state that "the calculation of monthly expenses is reasonable" and must explain how it arrived at the monthly amount, or at least from the record, allow us to make this determination ourselves. Id. Appellant challenges the latter of these requirements arguing that the court abused its discretion by failing to make findings specifically delineating which expenses the court used to determine Ms. Rehn's monthly needs.

¶8 Appellant's claim is without merit. While the trial court did not expressly articulate which expenses it used to arrive at the alimony award, there is no requirement that a court make such a finding. In any event, the court incorporated by reference Ms. Rehn's expenses in its findings. More importantly, however, the trial court stated that the calculation of expenses was reasonable and adequately explained how it arrived at the alimony award. Specifically, the court found that Ms. Rehn had a need for support; concluded that $3,300 was not an unreasonable monthly expense for a mother and two children; indicated Ms. Rehn's needs were well established, reasonable and real; and stated how it calculated the alimony award (explaining that Ms. Rehn's monthly expenses totaled $3,317, and by subtracting Ms. Rehn's monthly gross income of $1,072 and child support award of $1,045, an alimony award of $1,200 was proper). In light of these findings, we hold that the trial court did not err.

¶9 As to the second factor, appellant argues that the court erred in finding there was no issue of underemployment and in failing to use Ms. Rehn's historical earnings to impute a higher income to her. Again, we disagree. This case does not present a situation where the trial court merely referenced Ms. Rehn's monthly income or failed to adequately consider her earning capacity. See Chambers v. Chambers, 840 P.2d 841, 843 (Utah Ct.App.1992) (holding blanket reference to recipient's income insufficient; proper findings would address the recipient's level of education, health, and immediate or eventual employability). To the contrary, the trial court's findings specify Ms. Rehn's established monthly income, and in doing so consider the "historical roles" both parties played in the marriage--that is, Ms. Rehn was the primary caretaker of the parties' minor children. Moreover, because it is sufficient to impute a lesser income to the recipient spouse so that she might give adequate care and nurturing to the parties' minor children, see Fletcher v. Fletcher, 615 P.2d 1218, 1223 (Utah 1980), we hold that the trial court did not err in imputing lesser earnings to Ms. Rehn.

¶10 Regarding the third factor, appellant argues that the court abused its discretion in failing to make adequate findings addressing appellant's expenses and disposable income. Again, we disagree. We have previously indicated that "simply stating [the obligor's] earnings does not amount to an adequate finding of fact as to his ability to provide support. To be sufficient, the findings should also address [the obligor's] needs and expenditures, such as housing, payment of debts, and other living expenses." Baker, 866 P.2d at 547; see also Chambers, 840 P.2d at 843-44 (reversing and remanding when court simply stated that "the defendant has the ability to pay"). In this case, the findings adequately address Mr. Rehn's ability to pay. The court stated that the ability to earn income favors Mr. Rehn; the ratio of earned income is about 80% to Mr. Rehn, 20% to Ms. Rehn; Mr. Rehn has the ability to pay; "the parties are simply going to have to tighten up their belts and make do with less"; referred to Mr. Rehn's income tax liabilities and other expenses; and, incorporated by reference exhibits 3 and 5 which both list Mr. Rehn's monthly income. As such, the trial court did not err. Moreover, the court properly considered the length of the parties' marriage in awarding alimony when it indicated that "this is a twenty year marriage where alimony is appropriate."

¶11 In addition, appellant argues that the trial court erred in awarding alimony beyond the duration of the parties' twenty-year marriage when it awarded permanent alimony to Ms. Rehn without complying with Utah Code Ann. § 30-3-5(7)(h) (1998), which permits a court to award alimony beyond the duration of the parties' marriage only if it finds "extenuating circumstances." Whether this statute requires a court to explicitly find extenuating circumstances, as appellant argues, presents an issue of statutory interpretation, which is a question of law, see Child v. Newsom, 892 P.2d 9, 10 (Utah 1995), requiring us to first examine the statute's plain language and then to resort to other methods of statutory interpretation if the language is ambiguous. See Matrix Funding Corp. v. Auditing Div. of the Utah State Tax Comm'n., 868 P.2d 832, 833 (Utah Ct.App.1994). We construe the statute to give effect to legislative intent and assume "the Legislature used each term advisedly, and ... give effect to each term according to its ordinary and accepted meaning." Versluis v. Guaranty Nat'l Cos., 842 P.2d 865, 867 (Utah 1992).

¶12 Section 30-3-5(7)(h) provides that "Alimony may not be ordered for a duration longer than the number of years that the marriage existed unless, at any time prior to termination of alimony, the court finds extenuating circumstances that justify the payment of alimony for a longer period of time." Utah Code Ann. § 30-3-5(7)(h) (1998) (emphasis added).

¶13 In awarding permanent alimony, the trial court failed to explicitly use the term "extenuating circumstances" in its findings, instead stating as follows:

This is a 20-year marriage where alimony is appropriate. Alimony should be awarded permanently for at least 20 years, until, if and when, there is a legal event that would terminate the payment or receipt of alimony.

....

Alimony has been carefully considered factoring the length of the marriage, disparity in the abilities of the parties to earn income, the historical...

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