Alimony Case Law Update 01/30/2014, Kidd v. Kidd and Allen v. Allen

UPDATED: January 30, 2014

Kidd v. Kidd, 2014 Utah App 26

Below is a synopsis of the recent Utah Appellate Court ruling in Kidd v. Kidd.  Although, at a glance the district appeared to make a number of decisions that were unfounded or in deviation of proper legal standards, the Appellate court found that the District Court actually considered the evidence in totality and gave a significant amount of credits to the husband, who defended the alimony claim, and also imputed the wife at higher than minimum wage even though the District Court easily could have not imputed her at all.  The relevant facts and rules are listed below:

Husband (age 56) had 87k in savings.  Earned 5925 in gross employment income and another 2324 in other income.

Wife, (age 55) had worked periodically and did sporadic schooling, but could not sustain either because of depression issues.  Court imputed her at $9 per hour or $1560 per month.

Because Husband was receiving from employment, retirement, and rental income $979 more than his monthly expenses and Wife considerably less than hers, the court found it ‚appropriate to equalize the parties’ standards of living‛ by having Husband ‚help provide for [Wife’s] needs.‛ It therefore awarded Wife monthly alimony in the amount of $2,182.50. The court explained that it arrived at this figure by adding the parties’ monthly income only from employment ($5,925 + $1,560 = $7,485), dividing that income in half ($7,485 / 2 = $3,742.50), and subtracting the income imputed to Wife ($1,560).

This division left both parties with a monthly shortfall but was intended to ensure that the shortfall in their ability to maintain the marital standard of living was equitably shared. The court made the alimony award retroactive to the time of the separation in October 2010 and awarded Wife $9,555 in back alimony, the difference between the permanent monthly alimony award ($2,182.50) and the temporary monthly alimony amount ($1,500), calculated from October 1, 2010, when temporary alimony began, to December 19, 2011, when permanent alimony was awarded.

Wife explained that she had become accustomed to living in her own home during the marriage and was only living with family until she qualified for a mortgage loan, which depended on the final division of the parties’ assets and determination of any alimony award.

(‚The courts will equalize the incomes of the parties . . . in those situations in which one party does not earn enough to cover his or her demonstrated needs and the other party does not have the ability to pay enough to cover those needs.‛). Sellers v. Sellers, 2010 UT App 393, ¶ 3, 246 P.3d 173

The purpose of equalization is to ensure that when the parties are unable to maintain the standard of living to which they were accustomed during marriage, the shortfall is equitably shared. Sellers, 2010 UT App 393, ¶ 3. Indeed, “[i]ncome equalization, as imposed by the courts in divorce proceedings, is perhaps better described as ‚equalization of poverty.‛ In other words, the courts will equalize the incomes of the parties only in those situations in which one party does not earn enough to cover his or her demonstrated needs and the other party does not have the ability to pay enough to cover those needs.”

Appellate Review of Findings of Fact:

Hall v. Hall, 858 P.2d 1018, 1021 (Utah Ct. App. 1993) (citation and internal quotation marks omitted). Unstated findings can be implied if it is reasonable to assume that the trial court actually considered the controverted evidence and necessarily made a finding to resolve the controversy, but simply failed to record the factual determination it made.‛ Id. at 1025.

Contracts/Settlements Between Spouses Subject to Normal Contract Principles:

Jacobsen v. Jacobsen, 2011 UT App 161, ¶ 13, 257 P.3d 478 (‚The governing principle in our law is that contracts between spouses are enforceable and generally subject to ordinary contract principles . . . .‛ (citation and internal quotation marks omitted)).

Allen v. Allen, 2014 Utah App 27

The main issue in Allen was the District Court making specific findings of fact and conclusions of law.  In other words, the final documents signed by the Court need to outline all the facts relevant to the pertinent factors at issue in the case i.e. alimony, custody.

The District Court “determined that the stability offered by the Husband outweighed the apparent empathy of Wife.” The Appellate Court ruled that this statement was inadequate to conclude the alimony issue and remanded the case to determine the three main alimony elements: need, ability to pay, ability to provide. Jensen v. Jensen, 2007 UT App 377.

The Appellate Court also reminded us that “unlike support and alimony determinations, …there is no checklist of custody factors”…that “can govern custody determinations in all cases” citing Smith v. Smith, 726 P.2d 423, 426 (Utah 1986).  But, “the factors relied on by the trial judge in awarding custody must be articulable and articulated in the judge’s written findings and conclusions.” Id. Utah Code sections 30-3-10 and 30-3-10.2.  What the appellate court meant, I believe, is that there is no exhaustive list of exclusive factors to be considered in custody cases.  There are obvious factors to be considered, See, U.J.A. 4-903 and U.C.A. 30-3-10, but this list is not exhaustive. The court also considered which parent would serve the child’s needs best “going forward” and that who had been the child’s primary caregiver is not always dispositive of physical custody, as well as which parent “cooperated the best during the past ‘sharing parent’ sessions. Nor does the court need to find one parent inadequate before awarding custody to the other. Tucker v. Tucker, 910 P.2d 1209, 1215 (Utah 1996)(Child custody decisions “may frequently and of necessity require a choice between good and better.”)

“Exceptional circumstances” are required to shift property designated as premarital to marital (or visa versa).  Boyer v. Boyer, 2011 UT App 141.  There is no requirement, however, to place a value on separate property…only marital property. Id.

Attorneys’ fees will be granted only upon a showing of financial need of the receiving spouse, ability of the other to pay, and reasonableness of the fees. Wilde v. Wilde, 969 P.2d 438, 444 (Utah Ct. App 1998)