Stevens v. Stevens

• Decision Date: 28 April 1988
• Docket Number: No. 860138-CA,860138-CA
• Parties: Glade STEVENS, Plaintiff and Respondent, v. Ellen I. STEVENS, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 952

754 P.2d 952

Glade STEVENS, Plaintiff and Respondent, v. Ellen I. STEVENS, Defendant and Appellant.

No. 860138-CA.

Court of Appeals of Utah.

April 28, 1988.

Donald R. Jensen, McCullough, Jones, Jensen & Ivins, Orem, for defendant and appellant.

Eldon A. Eliason, Delta, for plaintiff and respondent.

Before ORME, JACKSON and BENCH, JJ.

OPINION

JACKSON, Judge:

Ellen Stevens appeals from a judgment and decree of divorce, seeking a reversal or readjustment of the property distribution, alimony and child support provisions of the decree. We vacate portions of the judgment and decree and remand for entry of adequate factual findings in all three of these areas, including the assignment of values to specifically identified items of the distributed marital property.

Appellant and respondent were married for approximately six and one-half years, from March 26, 1977, until November of 1984. Three children were born to them, ranging in age from four to seven at the time of trial. When the parties married, he was engaged in farming and hay-hauling operations, which he continued to pursue for the duration of the marriage. Several hundred acres of land were farmed by him. At least twenty of those acres were bought by the parties. The remaining land was leased under various sharecropper arrangements with Milton Stevens, respondent's father, and four other landholders. Respondent retained seventy-five percent of crop proceeds and paid twenty-five percent to each landholder.

Prior to the marriage, appellant was employed in a garment factory and a dairy; she had previously held a clerical position in a dentist's office. She was thirty-one years old at the time of trial, had a high school education, and was unemployed. She called as a witness Dr. Cregg Ingram, a professor of educational psychology, who testified that she suffered from a learning disability which placed her academic skills in approximately the fifth grade range. Dr. Ingram predicted that she would have difficulty acquiring a college education, but that she "has the capability to perform on about any level that she wants to perform." Ingram further opined that "[i]t's not uncommon to see her type of problems in college students." Appellant testified that she had not formulated plans for continued education or employment, and that, while she might be willing to earn income, she believed that her husband would continue to provide for her after the divorce.

The trial court granted a divorce to appellant on November 27, 1984, reserving the custody, property and support issues for trial. The main dispute at trial involved the identification and valuation of the marital estate. Appellant submitted an appraisal prepared by Thomas Kysar of Certified Business Appraisals, Inc. concerning the value of the parties' two homes, twenty acres of farmland, the "good will" value of the farming and trucking business, and the value of the equipment and harvest. Kysar testified that he received information about the identity and value of each appraised item from appellant, income tax returns from 1979 through 1983, documents filed with the county recorder, personal observations from some distance, conversations with dealers in the field, and discovery documents produced by respondent. Kysar acknowledged on cross-examination that his appraisal included values of hay and certain items of farming equipment that did not belong to the parties and that some of the values assigned to equipment were not the product of his personal observation. He estimated that respondent and appellant held $27,700 in cash, based upon an examination of the parties' prior tax returns.

Appellant testified that she had no knowledge of her husband's income or of their assets and liabilities. Respondent called several witnesses, including his father, who testified that the parties held no ownership interest in certain items of property claimed as marital assets by appellant in the appraisal prepared by Kysar. There was also testimony from the local bank branch manager, who reported substantial overdrafts in the personal and business banking accounts held by the parties. In written final arguments, respondent claimed that the marital estate's net worth was $84,858. Appellant argued that the marital estate's net worth totaled $498,697, of which $101,686 represented the good will value of the farming and trucking operations.

The trial judge issued a memorandum decision on January 28, 1985, describing the property award and deciding all other issues reserved for trial. He directed respondent's attorney to prepare findings of fact, conclusions of law and a judgment and decree consistent with the decision. The court found that the marital estate consisted of the two homes occupied by the parties, twenty acres of farm land, four vehicles, a 1980 Freightliner hay truck, "miscellaneous" farm equipment, and household furniture, fixtures and appliances. The court awarded appellant the newer home, all of the household furniture, fixtures and appliances, and the automobile driven by her. Respondent was awarded the older home, the 1980 Freightliner truck, the Ford trucks, the "miscellaneous" farm equipment, proceeds from the harvested crops, and the twenty acres of land. The court found that appellant failed to establish that respondent had any interest in property owned by his father, including real estate located in Fillmore and St. George, Utah. The court found there was substantial indebtedness against the marital estate and ordered respondent to pay the remaining debts against the home and the automobile awarded to appellant, as well as all business and marital debts incurred prior to the parties' separation. She was awarded $4,000 in attorney fees and $700 in private investigator fees.

Appellant objected to the proposed findings of fact, conclusions of law, and judgment and decree prepared by opposing counsel. She submitted, along with her objections, her own draft of the proposed documents. At the same time, she filed a memorandum of costs and disbursements which was objected to by respondent. On April 11, 1985, the trial court basically adopted respondent's version of the findings of fact, conclusions of law, and judgment and decree, but amended two paragraphs to conform with language proposed by appellant regarding custody, visitation and income. The trial court approved all of her costs, except for the $2,531.15 paid to Certified Business Appraisals, Inc.

Appellant presents several issues on appeal: (1) did the trial court err by not assigning dollar values to each item of marital property and debt and by not determining the monthly income of respondent; (2) was there an equitable distribution of all items of marital property; (3) was there an abuse of discretion in setting alimony at $175 per month and child support at $175 per child per month; and (4) did the court err by not awarding appellant costs incurred in obtaining an appraisal of the parties' farming and hauling operations?

I. PROPERTY VALUATION AND DISTRIBUTION

Ordinarily, this court must assess the merits of appellant's claim of inequity in the distribution of marital property by reviewing the trial court's findings of fact and the values it assigned to the distributed items. Jones v. Jones, 700 P.2d 1072, 1074 (Utah 1985). "[W]hen one of the parties to a property distribution raises a serious question as to the value of one or more of the assets, the trial court's distribution of those assets should be based upon written findings of fact that will permit appellate review." Id. Where the trial court fails to do so, and appellant has not waived the claim, ¹ the appropriate remedy is to remand for necessary factual findings. Id. at 1074-75. See Peck v. Peck, 738 P.2d 1050 (Utah Ct.App.1987).

The Utah Supreme Court recently faced such a problem in Gardner v. Gardner, 748 P.2d 1076 (Utah 1988), in which the appellant ex-wife challenged the property distribution by the trial court as inequitable. The trial court had failed to assign values to the ex-husband's retirement account and medical assets. The court pointed out that the failure to make findings on all material issues is reversible error unless the facts in the record are clear, uncontroverted, and capable of supporting only a finding in favor of the judgment. Id. at 1078 (quoting Kinkella v. Baugh, 660 P.2d 233, 236 (Utah 1983)). See also Bastian v. King, 661 P.2d 953, 957 (Utah 1983) ("Proper findings are essential to enable this Court to perform its function of assuring that the findings support the judgment and that the evidence supports the findings.").

In this case, the trial court found that the marital property consisted of two homes and contents, four vehicles, twenty acres of land and miscellaneous farm equipment, all of which was found to be heavily indebted. The values of these assets were sharply disputed by the parties. Excluding the good will value of the farming and trucking operation, the parties' estimates of the total value of the marital estate differed by $312,153. Likewise, there was controverted evidence of the nature and amount of the indebtedness each party was ultimately ordered to pay. Nonetheless, in its memorandum decision and findings of fact, the trial court did not: (a) identify the items of marital property and debt; and (b) assign values to each item of distributed property and debt or a total value to the cumulative share awarded to each party.

We conclude, as did the Gardner court, that we cannot perform our reviewing function and determine whether the parties' property was equitably distributed without the trial court's detailed identification and valuation of the assets and debts awarded to each party. We therefore vacate that portion of the judgment and decree pertaining to property and debt distribution and remand for adequate factual findings. The trial court may adjust the property distribution as necessary after assigning...