Willey v. Willey

• Decision Date: 29 November 1993
• Docket Number: No. 920091-CA,920091-CA
• Citation: 866 P.2d 547
• Parties: Glen P. WILLEY, Plaintiff and Appellee, v. Rosalind Ann Johnson WILLEY, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 547

866 P.2d 547

Glen P. WILLEY, Plaintiff and Appellee, v. Rosalind Ann Johnson WILLEY, Defendant and Appellant.

No. 920091-CA.

Court of Appeals of Utah.

Nov. 29, 1993.

Roger D. Sandack, Salt Lake City, argued, for defendant and appellant.

Ellen Maycock, Salt Lake City, argued, for plaintiff and appellee.

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

BILLINGS, Presiding Judge:

Rosalind Willey appeals the trial court's decisions in this divorce action on alimony, division of marital property, and the award of attorney fees. Because of insufficient findings, we reverse and remand the court's rulings on alimony and the award of attorney fees. We also reverse and remand the property division to give the court the opportunity to reconsider these related financial aspects of the divorce. We otherwise affirm.

FACTS

Appellant Rosalind Ann Johnson Willey and appellee Glen Paul Willey were married on April 29, 1982. The parties had no children together, and both had been married previously. Mrs. Willey had custody of three children from her former marriage who, at the time of the Willeys' divorce, were twenty, seventeen, and thirteen years old.

During the marriage, Mr. Willey worked as a stockbroker, receiving commissions instead of regular wages. Since 1986, Mr. Willey's annual income ranged from a high of $138,052 in 1987, to a low of $73,096 in 1989. In addition, Mr. Willey earned deferred bonuses in 1987 (approximately $14,200), 1990 (approximately $11,000) and 1991 (projected at $16,219), payable in 1992, 1995 and 1996, respectively, as long as he remained employed by the same firm.

At the time of their marriage, Mrs. Willey was employed full-time in retail clothing sales and earned approximately $10,000 annually. After the marriage, Mrs. Willey worked sporadically part-time. Her income ranged from a high of $6871 in 1985 to nothing in 1989. In 1990, she earned gross wages of $4412, working for five dollars an hour as a part-time salesperson in a bookstore and occasionally leading literary discussion groups formed through the bookstore. Mrs. Willey also received $332 per month in child support from her first husband.

To finance their lifestyle, the parties liquidated assets and incurred debts. Mrs. Willey owned a home at the time of her marriage to Mr. Willey. The parties sold this home in 1983, using the $29,164 in equity to purchase and improve a new home in their joint names. In 1986, the parties sold their joint home and purchased the home in which they lived at the time of their divorce. At the time of trial, they owed $232,000 to Zions Bank on the first mortgage on the marital home. In addition, the parties had consolidated loans from Mrs. Willey's parents into an approximately $80,000 second mortgage on the home.

The parties separated in November of 1990. In February of 1991, they reached a stipulation regarding temporary support. Under the agreement, Mr. Willey made most of the payments on the marital debts, including the $2492 monthly payment to Zions Bank on the first mortgage for their home and an approximately $360 monthly payment against a First Interstate Bank line of credit (the First Interstate debt). He also paid $1500 in monthly support to Mrs. Willey. The monthly payments for the second mortgage were deferred temporarily by agreement. Mrs. Willey remained in possession of the marital home.

After a two-day trial, the trial court entered findings of fact and conclusions of law and a final decree of divorce. We review the court's decision only as it affects the issues on appeal.

The court ordered each party to assume one-half of the approximately $12,000 First Interstate debt. The court denied Mrs. Willey's claim that she should receive $29,164 from the sale of her premarital home as premarital property, finding that these proceeds had lost their separate identity. The court awarded Mrs. Willey $5000 of her documented $19,215 in attorney fees. Furthermore, the court set alimony for Mrs. Willey at $1500 a month for one year to be reduced to $1000 a month for the next three years and then to terminate. Relevant to that award, the court found that Mrs. Willey could earn $1500 to $2000 monthly and that Mr. Willey earned an average of $110,000 annually, or approximately $9000 a month. In addition, the court ordered the marital home to be listed at $350,000 and sold as soon as possible. The court ordered the sale proceeds to be used to retire both mortgages on the home and cover the costs of sale. Any remaining proceeds were to go to Mrs. Willey if the home sold within ninety days after trial. If the home sold after ninety days, the court ordered the parties to divide equally any loss or gain. At oral argument the parties agreed the home sold for a loss, resulting in a debt of approximately $37,000.

On appeal, Mrs. Willey argues the court abused its discretion in: (1) setting the alimony award; (2) ordering her to be responsible for one-half of the marital debts; (3) failing to recognize her premarital equity in the marital home; and (4) failing to award her a significant contribution toward her claimed attorney fees of $19,215. In addition, Mrs. Willey requests attorney fees on appeal.

I. ALIMONY AND PROPERTY DIVISION

Mrs. Willey contends the trial court abused its discretion in setting the alimony award. She claims the court failed to make sufficient findings regarding either party's financial need, ignored both her actual needs and her ability to support herself, and erroneously imputed $1500 to $2000 a month to her as income. Because the trial court failed to make sufficient findings regarding the parties' needs and resources, we reverse and remand for a redetermination of the amount of the alimony award and the entry of findings necessary to support the revised award.

A. Legal Standard

We will not overturn a trial court's alimony ruling as long as the court supports its ruling with adequate findings and exercises its discretion according to the standards we have set. Bell v. Bell, 810 P.2d 489, 491 (Utah App.1991). In Bell, this court reiterated the well-settled standard for alimony set forth by the Utah Supreme Court in Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985), which stated:

"[T]he most important function of alimony is to provide support for the [spouse] as nearly as possible at the standard of living she [or he] enjoyed during the marriage, and to prevent the [spouse] from becoming a public charge." English v. English, 565 P.2d at 411 [ (Utah 1977) ].... [T]hree factors ... must be considered in fixing a reasonable alimony award:

the financial conditions and needs of the [spouse seeking support];

the ability of the [spouse seeking support] to produce a sufficient income for [himself or] herself; and

the ability of the [payor spouse] to provide support.

Jones, 700 P.2d at 1075.

"Failure to consider the Jones factors in fashioning an alimony award constitutes an abuse of discretion." Bell, 810 P.2d at 492 (citations omitted). Thus, "the trial court must make sufficiently detailed findings on each factor to enable a reviewing court to ensure that the trial court's discretionary determination was rationally based upon" the three Jones factors. Id. (citations omitted). "If sufficient findings are not made, we must reverse unless the record is clear and uncontroverted such as to allow us to apply the Jones factors as a matter of law on appeal." Id. (citation omitted).

B. Trial Court Findings

In its findings of fact and conclusions of law on alimony, the trial court stated:

The court finds that a reasonable average income to use for plaintiff in determining alimony to be paid in this matter is $110,000. Because of plaintiff's employment as a stock broker, his income has fluctuated. In 1987 and 1991, plaintiff had unusually good income years. The court further finds that defendant is capable of earning an income of between $1,500 and $2,000 per month, based on her education and qualifications. Accordingly, the court finds that it is equitable that plaintiff pay alimony to defendant of $1,500 per month for one year from the date of trial herein, and $1,000 per month for three years thereafter. The court further finds that plaintiff has been supporting defendant during the parties' separation of approximately one year, and it is appropriate to take that time period into account in determining the term of alimony. Alimony shall terminate at the end of four years from the date of trial, or when defendant remarries, cohabits with a member of the opposite sex, or dies, whichever first occurs.

In setting the alimony award, the court made no findings on Mrs. Willey's financial need as the first Jones factor requires. Nor did it make findings on Mr. Willey's financial need, which underlying factual determination is required for an assessment of the third Jones factor, the ability of the payor spouse to provide support. ¹

We have previously reversed an alimony award in a similar case when the trial court failed to address the parties' financial needs. In Bell v. Bell, 810 P.2d 489 (Utah App.1991), because the parties "dissipated and lived on credit," the trial court did not give "much weight ... as to what the needs and abilities of the parties might be." Id. at 492. Thus, the trial court failed to determine the reasonableness of the expenses each party claimed. This court reasoned that "[w]ithout a finding on reasonable expenses, we are unable to determine the true needs of Wife, or to determine Husband's actual ability to pay and, therefore, to balance Wife's needs against Husband's ability to pay as required in Jones." Id. at 493.

We face the identical problem here. At trial, both parties testified about their financial needs. Mr. Willey claimed monthly expenses totalling $3623, including $360 for repayment of the First Interstate debt, but excluding mortgage payments and expenses for the marital home. Mrs. Willey countered that his expenses were approximately...