Cox v. Cox

877 P.2d 1262, 242 Utah Adv. Rep. 44, 1994 Utah App. LEXIS 106, 1994 WL 321106
CourtCourt of Appeals of Utah
DecidedJuly 5, 1994
Docket920818-CA
StatusPublished
Cited by8 cases

This text of 877 P.2d 1262 (Cox v. Cox) 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
Cox v. Cox, 877 P.2d 1262, 242 Utah Adv. Rep. 44, 1994 Utah App. LEXIS 106, 1994 WL 321106 (Utah Ct. App. 1994).

Opinion

OPINION

JAMES Z. DAVIS, Judge:

Appellant, Janet R. Cox (Wife), appeals from a decree of divorce from Appellee, K. Norman Cox (Husband). We affirm in part and reverse in part.

We draw the facts primarily from the trial court’s findings of fact and from its memorandum decision. Where a party challenges a finding and adequately marshals the evidence, we draw the facts from the mar-shalled evidence and from the record.

The parties married July 1, 1988, separated December 1, 1990, and divorced August *1265 30, 1992. During the twenty-nine months between their marriage and their final separation, they experienced a five-month trial separation. This was Wife’s third marriage and Husband’s second. At the time they married, she was forty-seven and he was fifty-six years old. No children were born into the marriage.

Prior to the marriage, Wife sold a house she owned and in which she had been living. She used $18,000 of the $21,000 sale proceeds to repay funds she had borrowed from her parents.

In 1966, Husband and his first wife built a house in Orem, Utah. Husband and his first wife paid off the mortgage and raised their nine children while living in the house. At the time of his second marriage, the house was unencumbered.

Shortly before and during this marriage, both parties expended funds to remodel the house so it could accommodate them and their respective children. The court adopted the parties’ stipulation 1 that the value of the house at the time of the marriage and before remodeling was $77,000. The court determined that of the $29,993.65 spent toward remodeling, Wife contributed $12,562.65 2 and Husband expended $11,931 plus $5,500 he repaid to Wife for her expenditures. The court determined that Husband had already reimbursed Wife $9,005.55. The court accepted the parties’ stipulation that, at the time of the divorce, the value of the house was $105,000. The court determined that once the parties’ expenditures were deducted from the value of the house, it had not materially appreciated.

Several days prior to the marriage, the parties executed an antenuptial agreement (the Agreement) and Husband executed a warranty deed purporting to convey an undivided one-half interest in the house to Wife. The timing of the signing and execution of these documents is as follows: Wife signed the Agreement on June 28, 1988, and Husband signed it June 30,1988. The text of the Agreement states it was executed June 30, 1988. Husband executed the warranty deed on June 29, 1988. Husband and Wife married on July 1, 1988.

The warranty deed makes no mention of the Agreement, and the Agreement makes no mention of the warranty deed. Pertinent portions of the Agreement are as follows:

C. Each of the parties has made a full disclosure to the other party of all of his or her property and assets and of the value thereof, and this Agreement is entered into with a full knowledge on the part of each as to the extent and probable value of the estate of the other, and of all the rights conferred by law on each in the estate of the other by virtue of such proposed marriage.
E. Each of the parties mutually desires to retain, manage or dispose separately by gift, will or otherwise all of his or her estate to the same extent as if each of such parties remained single.
Article IX: Prospective husband represents that, on the date of this Agreement, the approximate value of his property and assets is THREE HUNDRED EIGHTY THOUSAND AND NO/100 DOLLARS ($380,000.00). Prospective wife represents that, on the date of this Agreement, the approximate value of her property and assets is SEVENTY THOUSAND AND NO/ 100 DOLLARS ($70,000.00).

The Agreement does not itemize the parties’ separate property, nor does it mention whether it contemplates that Husband owns the entire fee of the house or whether Husband and Wife éach own an undivided one-half interest. The Agreement states that each party agreed not to make any claim and to waive any right to “any and all rights by dower, homestead, surviving spouse award, inheritance, descent or any other marital right arising by virtue of statute or otherwise *1266 in and to any parcel of the estate now owned and possessed by the other.”

During the marriage, Husband earned his living working at his autobody business. While he was operating the business, he earned approximately $1,457 per month. During this time, Husband suffered from knee problems, which eventually rendered him unable to do autobody repair. At the time of the divorce, he was in need of a knee operation, which he could not afford.

After the parties separated, Husband sold his business. He received the proceeds in monthly installments of $500. He was employed briefly with Utah Valley Co'ihmunity College (UVCC), where he earned $17.65 per hour for approximately fifteen hours per week. However, his contract was not renewed. At the time of the divorce, he was receiving temporary unemployment compensation of $554 per month. Those unemployment benefits have since terminated, as have the monthly installments for the sale of the business. The court determined that Husband’s expenses exceeded his income, requiring him to borrow from $450 to $600 per month from his children to meet his financial obligations.

During the marriage, Wife was employed as a secretary by Brigham Young University, earning $1,850 per month in gross income and $1,134 in net income. At the time of the divorce, Wife was enrolled in a Masters program in Public Administration at BYU. Her tuition was paid by her employer.

The court, in considering Wife’s request for alimony, determined that

the present circumstances of the parties do not seem to compel an award of alimony to [Wife]. [Husband’s] ability to pay alimony is clearly lacking at the present time. His historical earnings are not relevant because of his sale of his business and because his physical disability now precludes him from seeking jobs in his area of training; autobody repair.
It is clear from the evidence that neither party now is able to meet respective financial obligations. [Wife], since separation, has purchased a condominium and encumbered herself with a mortgage. [Husband] has sold off numerous personal items, a gun collection, snowmobiles, cars, etc. in attempting to finance the marriage. He also assumed new loans during the marriage. Most marketable personal items have been sold.
... it is clear that the financial condition and need of both parties are deplorable. [Wife] has enrolled in a tuition-paid graduate program with the hopes of bettering her financial position. [Husband] currently has no such opportunity. [Husband] has no current employment and because of physical disabilities, no reasonable foreseeable ability to obtain employment and to pay alimony. The marriage is of a very short duration and both parties suffered significant financial reversals during the marriage. Accordingly, no alimony award is merited.

Distribution of the house proved to be a major issue in the divorce.

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Bluebook (online)
877 P.2d 1262, 242 Utah Adv. Rep. 44, 1994 Utah App. LEXIS 106, 1994 WL 321106, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cox-v-cox-utahctapp-1994.