Andersen v. Andersen

757 P.2d 476, 85 Utah Adv. Rep. 17, 1988 Utah App. LEXIS 104, 1988 WL 69707
CourtCourt of Appeals of Utah
DecidedJune 22, 1988
Docket870338-CA
StatusPublished
Cited by15 cases

This text of 757 P.2d 476 (Andersen v. Andersen) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Andersen v. Andersen, 757 P.2d 476, 85 Utah Adv. Rep. 17, 1988 Utah App. LEXIS 104, 1988 WL 69707 (Utah Ct. App. 1988).

Opinion

OPINION

GREENWOOD, Judge:

Plaintiff, Gay Andersen, appeals the trial court’s alimony award, its failure to specify the dollar value of the parties’ IRA account, and its failure to award plaintiff her attorney fees. We affirm in part, reverse in part and remand.

The parties were divorced in July 1987 after almost thirty-four years of marriage. During the marriage, the parties had four children. Defendant, Glade C. Andersen, was employed as a truck driver during most of the marriage and earned $26,000 annual gross income at the time of trial. Plaintiff was a housewife during the marriage, and her only employment outside the home was as an on-call school lunch cook. In 1987, plaintiff earned $290, and in 1986, $1,153.40. Plaintiff testified at trial that she had no work skills but would like to enroll in business school to acquire clerical skills. She also testified that her monthly expenses were between $875.45 and $915.45 per month. Defendant testified that his monthly expenses were over $1,800 per month. The parties’ home, which was paid for, was appraised at $46,000. At the time of the parties’ separation in August 1986, their IRA account contained $8,340.76. Defendant liquidated the IRA account in the fall of 1986 but had spent all but $3,300 of those funds at the time of trial.

The trial court found that defendant's current gross income was $26,000 per year with a net monthly income of $1,405 and that defendant had debt payments due of $465 and $97.82 per month. The court found that plaintiff was in good health, had earned $200 per month or less and had begun training for other employment. The court valued the parties’ home at $46,000 and noted that there was insufficient income to meet both parties’ living expenses and debt obligations. Plaintiff was award *478 ed use of the parties’ home until April 1, 1989, at which time the home was to be sold and the net proceeds divided equally. Both parties were awarded one-half of the value of the IRA account, but the court did not place a value on the account. The court awarded plaintiff $300 per month alimony until she completed her schooling or became employed full-time. The court found that defendant would have only $843 per month from which to pay the $300 per month alimony and his own living expenses, while plaintiff would have $300 per month alimony and $200 per month earnings and no rent payments.

ALIMONY

Plaintiff contends that the trial court erred in awarding her only $300 per month alimony and in ordering termination of alimony upon her completion of education or full-time employment. In divorce proceedings, the trial court has considerable discretion in adjusting the parties’ financial interests. Lee v. Lee, 744 P.2d 1378, 1380 (Utah Ct.App.1987). We will not disturb the trial court’s decision unless it is clearly unjust or an abuse of discretion. Gardner v. Gardner, 748 P.2d 1076, 1078 (Utah 1988). “[T]he most important function of alimony is to provide support for the wife as nearly as possible at the standard of living she enjoyed during marriage, and to prevent the wife from becoming a public charge.” Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985) (quoting English v. English, 565 P.2d 409, 411 (Utah 1977)). In awarding alimony, the trial court must consider three factors: 1) the financial conditions and need of the spouse seeking alimony; 2) the ability of the spouse seeking alimony to produce sufficient income; and 3) the ability of the paying spouse to provide support. Id.; Smith v. Smith, 751 P.2d 1149, 1152 (Utah Ct.App.1988). The trial court must make findings on all material issues, and its failure to do so constitutes reversible error unless the facts in the record are clear, uncontro-verted, and capable of supporting only a finding in favor of the judgment. Gardner, 748 P.2d at 1078.

In this case, the court found that plaintiff was in good health, had earned $200 per month or less and was training for other employment. The record indicates that plaintiff’s financial needs were $875.45 to $915.45 monthly while defendant’s needs were $1,800 per month. The court found that defendant’s net monthly income was $1,405 and that defendant had payments on various loans and accounts totaling $465 per month and a credit union payment of $97.82 monthly. The court then found that after those payments defendant had only $843 per month to pay his own expenses and the $300 per month alimony. Accordingly, the court considered all of the factors set forth in Jones. We find that the trial court did not abuse its discretion in awarding plaintiff $300 per month alimony, given the limited resources of the parties.

However, we agree with plaintiff that the court abused its discretion in terminating her alimony when she completes her schooling or becomes employed full-time. In Jones, the Utah Supreme Court found that an alimony award which decreased over the years was inequitable. Specifically, the Court stated: “The wife is in her mid-50’s, possesses few marketable job skills, and has little hope of retraining. This is simply not the sort of situation in which a decreasing rehabilitative alimony award is appropriate.” Jones, 700 P.2d at 1076. Subsequently, in Olson v. Olson, 704 P.2d 564 (Utah 1985), the Court found that the trial court’s order that alimony terminate after two years was a clear and prejudicial abuse of discretion where the wife had minimal experience and no reasonable expectation of obtaining employment at the standard of living she enjoyed during the marriage.

As in Jones and Olson, plaintiff is in her 50’s, has spent most of her life providing services to her family with no remuneration, and has minimal work experience. Given that lack of work experience, she cannot be expected to immediately find a job upon completion of her schooling. Also, her salary when she does find employment is unknown. The speculative na *479 ture of her future was corroborated during appellate argument when counsel represented that plaintiff had completed school, her alimony had terminated and she had not found employment. Under the facts in this case, the court’s order terminating plaintiffs alimony upon completion of her schooling without requiring proof that her financial circumstances had materially changed is an abuse of discretion and places an unwarranted burden on plaintiff. Because this court can modify the final decree in a divorce action, Olson, 704 P.2d at 567, we hereby modify the decree of divorce to provide that the $300 per month alimony is awarded and terminates as provided for by law. If there is a material change of circumstances warranting modification, appropriate proceedings may be initiated to modify the decree at that time.

PROPERTY DISTRIBUTION

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Taft v. Taft
2016 UT App 135 (Court of Appeals of Utah, 2016)
Rayner v. Rayner
2013 UT App 269 (Court of Appeals of Utah, 2013)
Parker v. Parker
2000 UT App 30 (Court of Appeals of Utah, 2000)
Thomas v. Thomas
1999 UT App 239 (Court of Appeals of Utah, 1999)
Breinholt v. Breinholt
905 P.2d 877 (Court of Appeals of Utah, 1995)
Jefferies v. Jefferies
895 P.2d 835 (Court of Appeals of Utah, 1995)
Morgan v. Morgan
854 P.2d 559 (Court of Appeals of Utah, 1993)
Howell v. Howell
806 P.2d 1209 (Court of Appeals of Utah, 1991)
Haumont v. Haumont
793 P.2d 421 (Court of Appeals of Utah, 1990)
Munns v. Munns
790 P.2d 116 (Court of Appeals of Utah, 1990)
Bagshaw v. Bagshaw
788 P.2d 1057 (Court of Appeals of Utah, 1990)
Riche v. Riche
784 P.2d 465 (Court of Appeals of Utah, 1989)
Schindler v. Schindler
776 P.2d 84 (Court of Appeals of Utah, 1989)
Maughan v. Maughan
770 P.2d 156 (Court of Appeals of Utah, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
757 P.2d 476, 85 Utah Adv. Rep. 17, 1988 Utah App. LEXIS 104, 1988 WL 69707, Counsel Stack Legal Research, https://law.counselstack.com/opinion/andersen-v-andersen-utahctapp-1988.