Throckmorton v. Throckmorton

• Decision Date: 19 December 1988
• Docket Number: No. 870400-CA,870400-CA
• Citation: Throckmorton v. Throckmorton, 767 P.2d 121 (Utah App. 1988)
• Parties: Gail Kathleen THROCKMORTON, Plaintiff and Respondent, v. Cecil Dee THROCKMORTON, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 121

767 P.2d 121

Gail Kathleen THROCKMORTON, Plaintiff and Respondent, v.Cecil Dee THROCKMORTON, Defendant and Appellant.

No. 870400-CA.

Court of Appeals of Utah.

Dec. 19, 1988.

Robert M. McRae, McRae & DeLand, Vernal, for defendant and appellant.

Nolan J. Olsen, Olsen & Olsen, Midvale, for plaintiff and respondent.

Before GARFF, BILLINGS and JACKSON, JJ.

BILLINGS, Judge:

Appellant, Cecil Throckmorton("Mr. Throckmorton"), appeals the trial court's order modifying the parties' divorce decree increasing the alimony to be paid respondent, Gail Throckmorton("Mrs. Throckmorton"), from $1 per year to $396 per month.Mrs. Throckmorton cross-appeals, arguing the trial court erred in denying her request for one-half of Mr. Throckmorton's retirement benefits.We affirm in part and reverse in part.

The Throckmortons were married on May 27, 1955, and had eight children during the course of their twenty-one-year marriage.All of the children have reached majority.

The parties were divorced on September 13, 1976.

At the time of the divorce, Mr. Throckmorton was a police officer making $19,040 annually.Mrs. Throckmorton was not employed outside the home.

The divorce decree awarded Mrs. Throckmorton custody of the parties' five minor children and ordered Mr. Throckmorton to pay $85 per child per month in child support, for a total of $425 per month.Mr. Throckmorton was also ordered to pay alimony in the amount of $1 per year.Mrs. Throckmorton was awarded the family home, subject to the outstanding mortgage.When the home was sold in 1983, Mrs. Throckmorton received the equity of $24,000.Mr. Throckmorton was ordered to pay approximately $12,000 in marital debts incurred during the course of the marriage.The divorce decree was silent regarding Mr. Throckmorton's retirement benefits.

Mrs. Throckmorton is presently unemployed and suffering from numerous medical problems prompting her doctor to recommend open heart surgery.Mr. Throckmorton is retired and receives retirement benefits of $18,970 annually.

Mrs. Throckmorton filed this petition to modify the divorce decree on September 26, 1986, seeking an increase in the alimony award from $1 per year to $500 per month, and seeking a share of Mr. Throckmorton's retirement benefits.Mrs. Throckmorton claims that at the time of the original decree, she was unaware she had any legal rights in the retirement benefits.

The trial court, by stipulation of counsel, accepted both proffered evidence and the sworn testimony of the Throckmortons.The trial court found a substantial change of circumstances warranted an increase in alimony to $396 per month based on Mrs. Throckmorton's current unemployment, medical problems, and the fact she currently receives no child support.

The trial court further held Mrs. Throckmorton's claim to her former husband's retirement benefits was barred by the doctrine of res judicata.

Two issues are presented on appeal.First, whether the trial court abused its discretion in denying Mrs. Throckmorton's claim to Mr. Throckmorton's retirement benefits.Second, whether there was a substantial change of circumstance since the date of the original decree to justify an increase in alimony to $396 per month.

Standard of Review

Trial courts have considerable discretion to adjust divorcing parties' financial and property interests.See, e.g., Ruhsam v. Ruhsam, 742 P.2d 123, 124(Utah Ct.App.1987).The discretionary power to fashion an equitable property division extends equally to subsequent modifications of an earlier decree.McCrary v. McCrary, 599 P.2d 1248, 1250(Utah1979).Moreover, the trial court's actions are entitled to a presumption of validity.Ruhsam, 742 P.2d at 124.Absent a showing of a clear and prejudicial abuse of discretion, we will not interfere with an alimony or property award.Gardner v. Gardner, 748 P.2d 1076, 1078(Utah1988);Eames v. Eames, 735 P.2d 395, 397(Utah Ct.App.1987).

Retirement Benefits

We first address whether the trial court abused its discretion in denying Mrs. Throckmorton's claim to one-half of her former husband's retirement benefits.The trial court"has continuing jurisdiction to make subsequent changes or new orders for the support and maintenance of the parties, ... or the distribution of the property as is reasonable and necessary."Utah Code Ann. § 30-3-5(3)(1988).AccordSundquist v. Sundquist, 639 P.2d 181, 186(Utah1981).However, in order to modify a prior property award, the moving party must establish a substantial change of circumstances "which was not within the original contemplation of the parties or the court at the time the original decree was rendered."Thompson v. Thompson, 709 P.2d 360, 362(Utah1985).Courts are particularly hesitant to disturb prior property distributions.SeeGuffey v. LaChance, 127 Ariz. 140, 618 P.2d 634, 636(Ct.App.1980).

In the instant case, the trial court found that Mrs. Throckmorton's claim to one-half of Mr. Throckmorton's retirement benefits was barred by the doctrine of res judicata.According to the trial court, Mrs. Throckmorton had the opportunity to litigate the issue of her rights to Mr. Throckmorton's retirement benefits at the time of the original divorce, and did not do so.Mrs. Throckmorton, however, contends that although she was aware of the existence of Mr. Throckmorton's retirement benefits at the time of the original divorce, Utah law did not recognize pension benefits as marital assets subject to distribution.Thus, she claims that the subsequent recognition of pension benefits as marital assets by the Utah Supreme Court's decision in Woodward v. Woodward, 656 P.2d 431(Utah1982), is a substantial change of circumstances which precludes application of the doctrine of res judicata.We disagree and affirm the trial court's refusal to reopen the issue of the distribution of Mr. Throckmorton's retirement benefits.

The doctrine of res judicata applies in divorce actions.Jacobsen v. Jacobsen, 703 P.2d 303, 305(Utah1985)."When there has been an adjudication, it becomes res judicata as to those issues which were either tried and determined, or upon all issues which the party had a fair opportunity to present and have determined in the other proceeding."Id.(footnote omitted)(quotingMendenhall v. Kingston, 610 P.2d 1287, 1289(Utah1980)).However, the application of res judicata is unique in divorce actions because of the equitable doctrine which allows courts to reopen alimony, support, or property distributions if the moving party can demonstrate a substantial change of circumstances since the matter was previously considered by the court.See, e.g., Thompson v. Thompson, 709 P.2d360(Utah1985).

We must determine whether the subsequent legal recognition of retirement benefits as marital property subject to distribution in a divorce case is a substantial change of circumstances, thereby precluding the application of res judicata.Or more specifically, whether Woodward should be given retroactive effect.

The Arizona Court of Appeals recently addressed this issue in Guffey v. LaChance, 127 Ariz. 140, 618 P.2d 634(Ct.App.1980), a factually similar case.In Guffey, the wife sought to modify a seven-and-one-half-year-old divorce decree in order to share in her former husband's military retirement benefits.The divorce decree was silent regarding his pension even though both parties were aware of the benefits at the time of the divorce.When the original decree was entered, the Arizona courts had yet to decide whether unvested pension benefits were community assets.However, at the time of the modification, pension benefits were deemed a property right subject to division in a divorce decree.Nonetheless, the court denied the wife's request to modify, stating, "[t]here is a compelling policy interest favoring the finality of property settlements" and this policy would be "greatly undermined if the court were to allow the potential for reexamination of every military divorce prior to the enactment of the rule."Id.618 P.2d at 636.

We agree with the Arizona Court of Appeals and find that legal recognition of a new category of property rights after a divorce decree has been entered, is not itself sufficient to establish a substantial change of...