Riley v. Riley

• Decision Date: 25 May 2006
• Docket Number: No. 20050386-CA.,20050386-CA.
• Citation: 2006 UT App 214,138 P.3d 84
• Parties: John E. RILEY, Petitioner and Appellant, v. Donna L. RILEY, Respondent and Appellee.
• Court: Utah Court of Appeals

Page 84

138 P.3d 84

2006 UT App 214

John E. RILEY, Petitioner and Appellant, v. Donna L. RILEY, Respondent and Appellee.

No. 20050386-CA.

Court of Appeals of Utah.

May 25, 2006.

Randall W. Richards, Richards Caine & Allen, Ogden, for Appellant.

David J. Peters and D. Michael Nielsen, Bountiful, for Appellee.

Before BENCH, P.J., BILLINGS and ORME, JJ.

OPINION

BILLINGS, Judge:

¶ 1 Petitioner John E. Riley (Husband) appeals the trial court's divorce decree. Husband claims the trial court abused its discretion in (1) awarding Respondent Donna L. Riley (Wife) $900 per month in alimony, (2) awarding Wife attorney fees, and (3) failing to award Husband one half of Wife's retirement benefits. We affirm in part and reverse in part.

BACKGROUND

¶ 2 Husband and Wife were married in February 1992 in Fairbanks, Alaska. Prior to their marriage, Husband, who had served in the Army for more than fifteen years, was stationed at Fort Wainwright in Fairbanks, Alaska. Wife, who lived approximately 680 miles south of Fairbanks in Sitka, Alaska, was working full time for the State of Alaska. After the couple married, Wife was unable to find employment in Fairbanks, so Husband left the Army and relocated to Sitka.¹ When Husband left the Army, he received $15,000 in severance pay. Had Husband stayed with the Army for another four years and four months, he would have received approximately $1000 per month in retirement benefits for the rest of his life. After Husband relocated to Sitka, he had difficulty finding work, so the parties agreed that he would stay home to care for his son and Wife's two children while Wife continued to work.

¶ 3 In July 1994, the family moved to Kaysville, Utah, where Wife continued her work in the child and family services field and obtained a master's degree. Wife then secured a job as the Associate Regional Director for the Division of Child and Family Services. At the time of trial, Wife was working as a program manager with the Department of Human Services.

¶ 4 After Husband and Wife moved to Utah, Husband pursued a career as a commercial pilot. He attended school from September 1994 to August 1997 and received a bachelor's degree in aviation management from Westminster College. The Veteran's Administration (VA) paid for Husband's schooling plus $796 per month in living expenses. After graduating, Husband initially worked full time as a flight instructor. He later obtained a job as a pilot for Continental Express Jet Airlines (Express). At the time of trial, Husband was a captain with Express.

¶ 5 In 1999, Husband had an extramarital affair, resulting in the birth of a son in Houston, Texas, on February 4, 2000. Due to Husband's pattern of sustained deception, Wife was unaware of the affair or the child until she opened a letter addressed to Husband from the State of Texas in April 2001. After Wife learned of the affair and the child, Husband and Wife sought counseling to deal with the resulting marital problems. Husband and Wife agreed that as a condition of the parties remaining together, Husband would not have contact with his newly born son or the son's mother.

¶ 6 In spring 2003, Husband asked Wife what they would do if the son lost his mother. Wife informed Husband that he would have to give up his parental rights to the child. In response, Husband decided to leave the marriage. Husband moved to Houston, Texas, agreeing to pay Wife $900 each month until they sold their house in Utah. The couple sold their house on December 1, 2004.

¶ 7 Over the course of the marriage, Husband's earnings rose significantly. When the parties first married, Husband was earning $17,000 annually from the Army. At the time of trial, Husband was compensated at a rate of $66.40 per hour. Husband also receives $414 per month in VA disability payments. In 2004, Husband's W-2 showed an annual income of $82,193.19, which included $16,767.20 in retroactive pay. Husband testified at trial that his expected gross taxable income for 2005 was $6232 per month. This estimate of gross monthly income did not include the approximate $4000 Husband receives annually as an untaxed per diem to cover expenses associated with travel for work. The trial court, taking into account Husband's airline wages, per diem, and disability pay, found that Husband earns $6800 per month. Husband has no pension plan, but Express does provide its pilots with a retirement program, matching dollar for dollar up to 6% of Husband's investments in a 401(k) plan. At the time of trial, Husband had $21,858.75 in his 401(k) plan, with a loan for $5,711.84 against that amount.

¶ 8 The trial court found that Husband set forth his monthly expenses at $4655, $750 of which was for food and entertainment. The trial court determined that, despite the fact that some of Husband's expenses were inflated, he still had more than $2000 left over each month based on earnings of $6800. Therefore, the trial court concluded that Husband had the ability to provide support to Wife.

¶ 9 Throughout the marriage, Wife's earning potential remained relatively stable. At the time the parties married, Wife was earning approximately $50,000 a year working for the State of Alaska. Her 2004 W-2 showed a gross income of $46,919.64. Wife reported her 2005 expected gross income as approximately $50,000. Although Wife occasionally performed outside contract services, the court found that her income from these services was minimal. The trial court found Wife's monthly earnings to be $4153. At the time of trial, Wife had $23,000 in a 401(k) account. There was a loan against this account in the amount $11,500.

¶ 10 Wife set forth expenses totaling $4491, including $400 per month in legal fees. The court found that Wife's monthly expenses were $4491, $338 more than her income of $4153 per month. Therefore, the court found Wife was in need of support.

¶ 11 The trial court also found that Husband and Wife contributed significantly different amounts toward family expenses over the course of the marriage. Husband earned approximately $205,688, plus $22,500 in VA benefits, while Wife earned approximately $502,645. In addition to her earnings, Wife liquidated several of her premarital assets to contribute to family expenses. The trial court found that Wife earned and contributed approximately $275,000 to $300,000 more than Husband over the course of the marriage.

¶ 12 Finally, the trial court determined that Wife was more credible than Husband. Specifically, the trial court found that while Wife had been frank with the court, Husband had been unwilling to admit facts that he should have admitted. For example, during trial, Husband denied having fathered an additional child around the time of his separation from Wife. Husband did acknowledge, however, that he was involved with the child's mother and that this child was covered by his medical insurance. The trial court therefore concluded that Husband had either lied about fathering a second child out of wedlock or he had defrauded the insurance company, either of which reflected poorly on his credibility.

¶ 13 In its decision, the trial court acknowledged it had given consideration to the issue of fault. Specifically, the court noted that: (1) during the course of the marriage, Husband committed adultery and fathered an out-of-wedlock child; (2) Husband hid this from Wife for nearly two years, during which time he paid child support; (3) Wife found out about Husband's affair and his new son when she opened a letter from the State of Texas that was addressed to Husband; (4) these circumstances constituted grounds for extreme mental anguish and distress for Wife; and (5) Husband may have fathered an additional child outside his marriage to Wife, and he was evasive and deceitful about the existence of such a child. The trial court concluded that the divorce would not have taken place but for Husband's acts of adultery.

¶ 14 Based on the above findings, the trial court ordered Husband to pay Wife alimony in the amount of $900 per month, not to exceed the duration of the marriage—approximately 156 months. The trial court awarded each party his or her own 401(k) retirement benefits and allowed Wife to keep all of her defined benefits from state retirement. Finally, the court ordered Husband to pay $5000 of Wife's $10,500 in attorney fees over an eighteen-month period.

ISSUES AND STANDARDS OF REVIEW

¶ 15 On appeal, Husband asserts the trial court improperly awarded Wife $900 per month in alimony and $5000 in attorney fees. "`Trial courts have considerable discretion in determining alimony . . . and [determinations of alimony] will be upheld on appeal unless a clear and prejudicial abuse of discretion is demonstrated.'" Davis v. Davis, 2003 UT App 282, ¶ 7, 76 P.3d 716 (alterations in original) (quoting Breinholt v. Breinholt, 905 P.2d 877, 879 (Utah Ct.App.1995)). Likewise, "[t]he decision to award attorney fees and the amount thereof rests primarily in the sound discretion of the trial court." Childs v. Childs, 967 P.2d 942, 947 (Utah Ct.App.1998). A trial court abuses its discretion "if there is no reasonable basis for the decision." Langeland v. Monarch Motors, Inc., 952 P.2d 1058, 1061 (Utah 1998).

¶ 16 Husband also disputes the trial court's decision not to award Husband one-half of Wife's retirement benefits.

We afford the trial court considerable latitude in adjusting financial and property interests, and its actions are entitled to a presumption of validity. Accordingly, changes will be made in a trial court's property division determination in a divorce action only if there was a misunderstanding or misapplication of the law resulting in substantial and prejudicial error, the evidence clearly preponderated against the findings, or such a serious inequity has resulted as to manifest a clear abuse of discretion.

Davis, 2003 UT App 282 at ¶ 8, 76 P.3d 716 (quotations and citations omitted).

ANALYSIS

I. Alimony Award

¶ 17 Under ...