Wall v. Wall

• Citation: 2007 UT App 61,157 P.3d 341
• Decision Date: 23 February 2007
• Docket Number: No. 20060312-CA.,20060312-CA.
• Parties: Laurie P. WALL, Petitioner and Appellee, v. Cory R. WALL, Respondent and Appellant.
• Court: Court of Appeals of Utah

157 P.3d 341

2007 UT App 61

Laurie P. WALL, Petitioner and Appellee, v. Cory R. WALL, Respondent and Appellant.

No. 20060312-CA.

Court of Appeals of Utah.

February 23, 2007.

Gregory B. Wall, Wall & Wall, Salt Lake City, for Appellant.

Robert H. Wilde, Robert H. Wilde PC, Midvale, for Appellee.

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

OPINION

BILLINGS, Judge:

¶ 1 Cory R. Wall appeals from the trial court's order modifying decree of divorce and order denying motion for new trial. Specifically, Mr. Wall argues that the trial court erred when it denied his petition to reduce or terminate his alimony obligation to his ex-wife, Laurie P. Wall; denied his request to make the child support modification retroactive; denied his request for a new trial; and awarded Mrs. Wall attorney fees. We affirm and remand for a determination of attorney fees accrued on appeal.

BACKGROUND

¶ 2 Mr. and Mrs. Wall were married on June 10, 1981, and were divorced by decree of divorce (the Decree) on November 2, 2000. At the time of the divorce, Mrs. Wall was not working because she was caring for the parties' three children and attending college. Mr. Wall was self-employed as an attorney. Due to the nature of his law practice, his income fluctuated; however, at the time of the divorce, Mr. Wall's most current tax returns reflected a gross monthly income of $4734. According to the parties' settlement agreement (the Settlement Agreement) and the original Decree, Mr. Wall was required to pay Mrs. Wall $1200 per month in child support and $800 per month in alimony.

¶ 3 Following the parties' divorce, Mrs. Wall graduated from college and found full-time employment. On March 3, 2004, Mr. Wall filed a verified petition to modify the decree of divorce (the Petition). The Petition sought to terminate or reduce Mr. Wall's alimony obligation and to reduce his child support obligation based on Mrs. Wall's change in circumstances, specifically her graduation from college and subsequent employment.

¶ 4 On November 1, 2005, the trial court conducted a one-day trial regarding the Petition. At that time, the court determined that Mr. Wall's gross monthly income was approximately $4706 and Mrs. Wall's gross monthly income was approximately $2666. At the conclusion of the trial, the court found that there had been a substantial change in circumstances sufficient to reduce Mr. Wall's child support obligations to $977 per month, effective December 1, 2005. The court declined to make the modified child support order retroactive because it would harm the children as Mrs. Wall was unable to pay Mr. Wall the retroactive amount of approximately $4000.

¶ 5 Regarding Mr. Wall's alimony obligation, the trial court found that the parties did not agree at the time of divorce that the $800 monthly alimony was sufficient to meet Mrs. Wall's needs and that the documents on file with the court at the time of the divorce showed that the $800 per month actually did not meet her needs. The trial court further found that Mrs. Wall's completion of college and getting a job were contemplated by the parties at the time of divorce, and therefore she did not experience a substantial change in circumstances. The trial court declined to modify Mr. Wall's alimony obligations, and determined that the alimony should remain consistent with the provisions of the original Decree. The court awarded attorney fees to Mrs. Wall.

¶ 6 On January 20, 2006, Mr. Wall filed a motion for new trial, requesting that a new trial be held on the issues of alimony reduction or termination, retroactive application of the child support modification order, and the award of attorney fees to Mrs. Wall. The trial court denied Mr. Wall's motion on March 28, 2006. Mr. Wall now appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 7 On appeal, Mr. Wall argues that the trial court erred in refusing to modify the original Decree. "The determination to modify a divorce decree is generally reviewed under an abuse of discretion standard. However, questions about the legal adequacy of findings of fact and the legal accuracy of the trial court's statements present issues of law, which we review for correctness." Van Dyke v. Van Dyke, 2004 UT App 37, ¶ 9, 86 P.3d 767 (quotations and citations omitted).

¶ 8 Mr. Wall also asserts that the trial court erred when it denied his motion for a new trial. "In deciding whether to grant a new trial, the trial court has some discretion, and we reverse only for abuse of that discretion." Okelberry v. W. Daniels Land Ass'n, 2005 UT App 327, ¶ 20 n. 14, 120 P.3d 34 (quotations and citation omitted).

¶ 9 Finally, Mr. Wall contends that the trial court erred in awarding attorney fees to Mrs. Wall at the conclusion of trial. "An award of attorney fees in divorce actions rests within the sound discretion of the trial court, which we will not disturb absent an abuse of discretion." Wells v. Wells, 871 P.2d 1036, 1038 (Utah Ct.App.1994).

ANALYSIS

I. Alimony

¶ 10 Mr. Wall contends that the trial court erred in failing to reduce or terminate his alimony obligation to Mrs. Wall. More specifically, he asserts that Mrs. Wall experienced a substantial change in circumstances when she completed college and became qualified for full-time employment.

¶ 11 "On a petition for a modification of a divorce decree, the threshold requirement for relief is a showing of a substantial change of circumstances occurring since the entry of the decree and not contemplated in the decree itself." Moore v. Moore, 872 P.2d 1054, 1055 (Utah Ct.App.1994) (quotations and citations omitted) (emphasis omitted). If a change in circumstances is "reasonably contemplated at the time of divorce[, then it] is not legally cognizable as a substantial change in circumstances in modification proceedings." Dana v. Dana, 789 P.2d 726, 729 (Utah Ct.App.1990).

¶ 12 "In order for a material change in circumstances to be contemplated in a divorce decree there must be evidence, preferably in the form of a provision within the decree itself, that the trial court anticipated the specific change." Durfee v. Durfee, 796 P.2d 713, 716 (Utah Ct.App.1990). Thus, "if both the divorce decree and the record are bereft of any reference to the changed circumstance at issue in the petition to modify, then the subsequent changed circumstance was not contemplated in the original divorce decree." Bolliger v. Bolliger, 2000 UT App 47, ¶ 13, 997 P.2d 903.

¶ 13 In its findings of fact, the trial court determined that at the time of the parties' divorce, Mrs. Wall was a full-time student with limited recent work experience and that either her completing a college degree or her getting a job, or both, was contemplated at the time of the divorce. Mr. Wall is correct that neither the parties' original Settlement Agreement, nor the original Decree, reference Mrs. Wall's graduation from college or subsequent employment. However, the trial court's findings of fact at the time of the divorce state that Mrs. Wall "is a full-time student with limited recent work experience." Moreover, Mrs. Wall's divorce complaint states that she was attending college at the time of the divorce "in an attempt to obtain skills which [would] allow her sufficient income to support herself." These references, made at the time of divorce, provide sufficient record evidence to support the trial court's conclusion that Mrs. Wall's graduation from college and subsequent employment were contemplated at the time of divorce.

¶ 14 Mr. Wall also argues that when the trial court refused to modify the alimony amount, it erred in determining that the $800 per month alimony payments did not meet Mrs. Wall's needs at the time of the divorce, and in considering Mrs. Wall's current needs—needs that did not exist at the time of the divorce. Although these arguments are not determinative as we have previously affirmed the trial court's finding that there has been no change in circumstances not contemplated at the time of the divorce, we nonetheless respond to Mr. Wall's concerns.

¶ 15 First, regarding Mr. Wall's argument that $800 per month was sufficient to meet Mrs. Wall's needs at the time of the divorce, we note that at the time of the divorce, the parties entered into the Settlement Agreement and stipulated that Mrs. Wall would receive $800 per month in alimony payments. Mr. Wall claims that by stipulating to this amount, Mrs. Wall agreed that $800 per month would sufficiently meet her needs. However, Mrs. Wall argues that the $800 per month was merely a settlement as to the amount she was to receive each month, not a stipulation that $800 per month was sufficient to meet her needs.

¶ 16 We conclude that simply because the parties stipulated to $800 per month alimony does not mean that they implicitly agreed $800 would sufficiently meet Mrs. Wall's needs. Instead, the stipulation indicates that they implicitly agreed that Mr. Wall has a legal obligation to pay alimony. Parties settle on alimony amounts for various reasons, including to balance a budget or to avoid extensive litigation.

¶ 17 Second, Mr. Wall argues that in refusing to modify the alimony amount the trial court improperly considered Mrs. Wall's current needs-needs that did not exist at the time of the divorce. Under Utah law, "[t]he court may not modify alimony or issue a new order for alimony to address needs of the recipient that did not exist at the time the decree was entered, unless the court finds extenuating circumstances that justify that action." Utah Code Ann. § 30-3-5(8)(g)(ii) (Supp.2006).

¶ 18 We have previously discussed the crux of Mr. Wall's argument on this issue—that $800 per month alimony was sufficient to meet Mrs. Wall's needs at the time of the divorce and that because her monthly income is triple the amount of alimony she receives, the court must have included additional needs that were not present at the time of the divorce. In making his argument, Mr. Wall fails to acknowledge the substantial...