Young v. Young

• Decision Date: 02 January 2009
• Docket Number: No. 20070577-CA.,20070577-CA.
• Citation: Young v. Young, 201 P.3d 301, 2009 UT App 3 (Utah App. 2009)
• Parties: Willa Mae YOUNG, Petitioner and Appellee, v. Darrel Edward YOUNG, Respondent and Appellant.
• Court: Utah Court of Appeals

201 P.3d 301

2009 UT App 3

Willa Mae YOUNG, Petitioner and Appellee, v.Darrel Edward YOUNG, Respondent and Appellant.

No. 20070577-CA.

Court of Appeals of Utah.

January 2, 2009.

Gregory N. Skabelund, North Logan, for Appellant.

Kevin Fife and Jonathan R. Palmer, Logan, for Appellee.

Before Judges GREENWOOD, McHUGH, and ORME.

OPINION

GREENWOOD, Presiding Judge:

¶ 1Darrel Edward Young(Husband) appeals the trial court's modification of his alimony obligation to Willa Mae Young(Wife), arguing that there was not a material change in circumstances to justify the modification.Husband also challenges the adequacy of the trial court's related factual findings as well as its decision to award Wife a portion of her attorney fees and costs incurred pursuing the alimony modification.For the reasons discussed below, we affirm.

BACKGROUND

¶ 2 After nearly twenty-four years of marriage, Husband and Wife divorced in 2003.The parties agreed that Husband would pay $50 per month to Wife as alimony.This stipulated alimony was based on the parties' income at the time of their divorce: Husband's income was $1470 per month; Wife's income was $1009 per month.Shortly thereafter, in or about November 2004, Husband became eligible for $1132 per month in social security benefits.In light of this eligibility, Wife filed a petition to modify the original alimony award.Despite Husband's social security benefits entitlement, at the time of the modification proceeding he was not receiving those benefits because he was incarcerated under the custody of the State of Utah.¹See20 C.F.R. § 404.468(1984)("No monthly [social security] benefits will be paid to any individual for any month any part of which the individual is confined in jail, prison, or other penal institution or correctional facility for conviction of a felony.").

¶ 3 At the modification proceedings, the court found that (1) Husband's receipt of social security benefits was not expressly foreseen in the original divorce decree; (2) Husband's incarceration was a result of his voluntary actions;² and (3) if not for Husband's incarceration, it is "substantially ... clear" that he would be receiving $1132 per month in social security benefits.Based on these findings, the court held that Husband's "right to social security benefits and [his] purposeful relinquishment of those benefits is tantamount to `receipt'" such that $1132 per month may properly be imputed to Husband as income.This additional income, according to the trial court, constituted "a substantial material change in circumstances not foreseeable at the time of the divorce."Accordingly, the trial court granted Wife's petition and increased the alimony award from $50 to $739 per month.In addition, the trial court awarded Wife a portion of her attorney fees incurred in prosecuting the alimony modification.Husband appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 4 Husband first argues that the trial court was incorrect in holding that his entitlement to social security benefits constituted a substantial material change in the parties' circumstances justifying modification of the original alimony award."`The determination of the trial court that there [has or has not] been a substantial change of circumstances ... is presumed valid,' and we review the ruling under an abuse of discretion standard."Bolliger v. Bolliger,2000 UT App 47, ¶ 10, 997 P.2d 903(alterations in original)(quotingMoon v. Moon,1999 UT App 12, ¶ 28, 973 P.2d 431).

¶ 5 Husband contends that the findings of fact are not supported by sufficient evidence.Generally, "[w]e will not disturb a trial court's factual findings unless they are clearly erroneous."Wilde v. Wilde,2001 UT App 318, ¶ 31, 35 P.3d 341.A challenge to the evidentiary basis for findings of fact requires a party to properly marshal the evidence.SeeMoon,1999 UT App 12, ¶ 24, 973 P.2d 431.Husband also challenges the adequacy of the trial court's factual findings supporting its determination of the modified alimony amount.A challenge to the legal adequacy of factual findings in a divorce modification proceeding presents a question of law and is reviewed for correctness.SeeWall v. Wall,2007 UT App 61, ¶ 7, 157 P.3d 341, cert. denied,168 P.3d 819, 2007UtahLEXIS 120(Utah2007);Van Dyke v. Van Dyke,2004 UT App 37, ¶ 9, 86 P.3d 767.

¶ 6 Finally, Husband urges us to reverse the trial court's award of attorney fees and costs to Wife.A trial court's decision to award attorney fees and costs in a divorce proceeding, including a modification proceeding, is presumed to be correct and will be reversed only upon a showing of "`manifest injustice or inequity that indicates a clear abuse of ... discretion.'"Wilde,2001 UT App 318, ¶ 38, 35 P.3d 341(quotingCrockett v. Crockett,836 P.2d 818, 819-20(Utah Ct. App.1992)).

ANALYSIS

I.Modification of Wife's Alimony Award

¶ 7 Husband argues that the trial court erred in finding that a substantial material change had occurred sufficient to justify modification of Wife's original alimony award.Husband further argues that, even if the trial court was correct in finding a substantial material change had occurred, it erred in failing to address the statutorily relevant alimony factors in setting the modified alimony amount.We will address, in turn, the trial court's finding of a substantial material change and the adequacy of the court's findings in setting the modified alimony amount.

A.Finding of a Substantial Material Change

¶ 8 In support of his argument that the trial court abused its discretion by determining that a substantial material change had occurred, Husband specifically argues that the trial court erred by imputing current income consisting of social security benefits and by failing to make a finding of "extenuating circumstances."³Wife, on the other hand, argues that the trial court was correct in determining that Husband's entitlement to and purposeful relinquishment of his social security benefits constituted "receipt" of the same and that the court did not need to make a finding of "extenuating circumstances."

¶ 9 Trial courts in Utah have "continuing jurisdiction to make substantive changes and new orders regarding alimony based on a substantial material change in circumstances not foreseeable at the time of the divorce."Utah Code Ann. § 30-3-5(8)(g)(i)(Supp.2008);⁴seeBolliger v. Bolliger,2000 UT App 47, ¶ 11, 997 P.2d 903.A party's receipt of social security benefits can constitute a substantial material change in circumstances for alimony modification purposes, so long as not expressly foreseen in the original decree of divorce.SeeBolliger,2000 UT App 47, ¶ 20, 997 P.2d 903(citing several Utah cases).Courts may modify alimony based on such benefits when "the entitlement and actual amounts of the benefits become definite."Id.¶ 18(quotingMunns v. Munns,790 P.2d 116, 122(Utah Ct.App.1990)).

¶ 10 In Bolliger v. Bolliger,2000 UT App 47, 997 P.2d 903, this court addressed whether a trial court had abused its discretion by denying a petition to modify alimony where the parties had agreed to an alimony amount in the original divorce decree but, subsequently, the obligor spouse had been forced into retirement through a reduction in force and the obligee spouse became entitled to and received social security benefits.Seeid.¶¶ 2-11.After discussing several relevant Utah cases, seeid.¶¶ 14-19, the Bolliger court recognized that Utah case law"demonstrate[s] that a party's retirement or receipt of social security, unless expressly foreseen at the time of the divorce, may amount to a substantial material change of circumstances."Id.¶ 20.This court accordingly reversed the trial court, holding that the social security benefits and the forced retirement constituted substantial material changes in circumstances sufficient to justify consideration of whether alimony should be modified.Seeid.¶ 24.

¶ 11The trial court in the instant case found that Husband became eligible for social security benefits shortly before Wife filed her modification petition, and that it is "substantially ... clear" that "[Husband] will begin to receive social security benefits in the amount of $1132 per month" once released from State custody.The trial court continued, finding that Husband's "incarceration is the sole cause of the denial of his Social Security benefits" and that Husband's continued incarceration is the result of his voluntary actions or failures to act.Based on these findings and citing Bolliger,the trial court determined that Husband's "right to social security benefits and [his] purposeful relinquishment of those benefits is tantamount to `receipt'" such that $1132 per month could properly be imputed to Husband as income for alimony modification purposes.

¶ 12 On appeal, Husband first argues that the trial court incorrectly determined that he was in "receipt" of his social security benefits.In doing so, Husband more specifically challenges the trial court's findings that his entitlement to, and the actual amount of, his social security benefits was readily ascertainable even while he was incarcerated.To properly challenge these factual findings, Husband is required to marshal all of the evidence in support thereof, and then show that the court's decision is against the clear weight of that evidence.See, e.g., Moon v. Moon,1999 UT App 12, ¶ 24, 973 P.2d 431(citingWest Valley City v. Majestic Inv. Co.,818 P.2d 1311, 1315(Utah Ct.App.1991)).Husband fails to adequately marshal the evidence; rather, he simply re-argues, as he did before the trial court, that he"is not in receipt of social security benefits and [that] the actual amount of said benefits ha[s] not become definite."When an appellant fails to meet the heavy burden of marshaling the evidence, we may presume the correctness of the trial court's findings and summarily affirm them.See, e.g., id.We do so here.⁵

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