Yelderman v. Yelderman, 18516

• Decision Date: 05 August 1983
• Docket Number: No. 18516,18516
• Citation: 669 P.2d 406
• Parties: Viola-Orvokki YELDERMAN, Plaintiff and Respondent, v. James J. YELDERMAN, Defendant and Appellant.
• Court: Utah Supreme Court

Page 406

669 P.2d 406

Viola-Orvokki YELDERMAN, Plaintiff and Respondent, v. James J. YELDERMAN, Defendant and Appellant.

No. 18516.

Supreme Court of Utah.

Aug. 5, 1983.

David S. Dolowitz, Salt Lake City, for defendant and appellant.

Robert M. McDonald and Jeffrey L. Fillerup, Salt Lake City, for plaintiff and respondent.

PER CURIAM:

Defendant, husband, appeals from a divorce decree contending that the district court awarded excessive alimony, improperly valued the marital property and unfairly divided it, and erred in awarding attorney's fees to plaintiff. We affirm.

The parties were married for twenty-five years. At the time of the divorce, the parties had six living children, all of whom were over the age of eighteen years. Plaintiff had worked prior to the marriage, and had some college education; since the marriage, plaintiff has worked only briefly as a salesperson in a local department store.

Defendant graduated from medical school during the marriage, and specialized in urology. In 1971, defendant organized the Utah Urological Clinic, through which he practiced medicine, with others, until shortly before the trial in this case. In November of 1981 defendant initiated dissolution of the clinic, and thereafter continued practice as a sole practitioner.

The marital property accumulated by the parties was substantial. The parties agreed to share certain property equally and the court granted such distribution without finding values for such property. The parties stipulated that the value of the residence is $243,000 and the mortgage thereon is $90,826. In addition, the parties stipulated as to the value of certain property, in which they participated as limited partners with other members of the family. These assets are known as the WHY, YBI and Yelderman Investment Company partnerships, which essentially hold bank stock and land. The parties also participated as partners in 6-K Enterprises, a farming operation, and K-Y Ranches, a ranching operation. The value of the latter two partnership interests and the distribution of the interests in all of the partnerships were contested below and here.

The court ordered distribution of the interests in WHY, YBI and Yelderman Investment Company to plaintiff, and the interests in 6-K and K-Y to defendant. In addition to the 6-K and K-Y interests, the court granted to defendant the proceeds on dissolution of Utah Urological Clinic and defendant's retirement trust, containing $85,693 at the time of the decree, together with the proceeds from certain property which was sold by defendant prior to the court hearing in violation of the court's restraining order. The residence was distributed to plaintiff subject to the mortgage.

Defendant appeals, arguing that the distribution was disproportionately in favor of plaintiff and challenging the court's findings as to the value of 6-K and K-Y, the Utah Urological Clinic and his retirement trust.

As stated above, the value of these assets was contested, and conflicting evidence was presented in that regard. Defendant acknowledges that it is within the prerogative of the trial court to evaluate conflicting evidence in making its decision, but he contends that the appraisals of property made by his experts were correct, and those made by plaintiff's experts were erroneous because his experts were more qualified. In addition, defendant argues that his appraisals of some assets were uncontroverted since the only evidence submitted by plaintiff in contradiction were the values stated by defendant in loan applications previously made by him.

The weight and credibility of the witness, including expert testimony, and evaluations of property are matters to be determined by the trier of fact. ¹ The values as found by the trial court here are substantiated by the record, and will not be disturbed by this Court absent showing of abuse of discretion, which we do not find in this case.

Defendant separately contends that the court erred in valuing his retirement trust at the full amount on deposit rather than discounting that amount. He cites Bennett v. Bennett, Utah, 607 P.2d 839 (1980) and Dogu v. Dogu, Utah, 652 P.2d 1308 (1982) where the trial court awarded each party a portion of the retirement fund, receivable in the future. Those cases, therefore, are not applicable here. This issue is governed by the rule in the cases cited in footnote 1, that it is within the province of the fact finder to believe those witnesses or evidence it chooses. We are not persuaded that the rule should be applied differently with regard to this particular asset.

Defendant also contends that the parties invested in the 6-K and K-Y partnerships for the purpose of sheltering his large income from taxes, and the result of the Court's judgment is to give to plaintiff all of the profitable banking property and to distribute all of the tax loss liabilities to him. In his post-trial memorandum, filed in the district court, defendant proposed distribution to him of all of the partnership interests. The court declined to follow this proposal, and stated in its Finding of Fact No. 10:

Some of the objectives of the Court in arriving at a fair division are to accomplish a division of the properties as nearly as practicable on an equal basis based upon the Court's determination of fair market values and taking into account the assumption of marital debt; to award to defendant his own business assets and those active business properties which require his management expertise and which provide tax shelter, and to award to plaintiff those properties which require little or no management expertise, debt service or tax shelter and have some reasonable prospect for liquidation in the hands of a relatively unsophisticated business person.

Under U.C.A., 1953, Section 30-3-5(1) the court is empowered to "make such orders in relation to the ... property ... of the parties ... as may be equitable." In commenting on the court's discretion in these matters, this Court said in Read v. Read, Utah, 594 P.2d 871 (1979):

When a marriage has failed, a court's duty is to consider the various factors relating to the situation and to arrange the best possible allocation of the property and the economic resources of the parties so that the parties and their children can pursue their lives in as happy and useful a manner as possible.

We believe the court's objectives, as stated in Finding No. 10, meet this criterion, and that his ordered distribution of the property is designed to accomplish those objectives. Further, the distribution is not disproportionately in favor of the plaintiff, as defendant claims. On the contrary, 56% of the value of the marital property, as found by the trial court, was distributed to defendant and 44% was distributed to plaintiff. The property distribution made by the district court is affirmed.

Defendant also argues that the court awarded excessive alimony to plaintiff, and contends that the award exceeds his present income in sole medical practice.

The evidence admitted by the trial court includes income tax returns of the parties for the past several years. These show that the income derived from defendant's medical practice in 1980 was $67,848, and in 1981 was $64,109. In addition to defendant's medical practice, income was received from various business sources, so that the total income on each return exceeded $100,000. Plaintiff testified that her current living expenses, including a $950 monthly mortgage payment, are $2,830 per month.

Defendant testified that his current living expenses are $2,990. He also testified that his income from medical practice had declined since the dissolution of Utah Urological Clinic, two months previously. The court found that defendant had received $7,744 from his practice for those two months, had collectible receivables of $6,636, and that his projected expenses for those two months were $6,038. On all...