Gill v. Gill

718 P.2d 779, 33 Utah Adv. Rep. 3, 1986 Utah LEXIS 792

• Court: Utah Supreme Court
• Decided: April 29, 1986
• Docket: No. 19142
• Status: Published

Opinions

HALL, Chief Justice:

This appeal challenges the propriety of the district court’s division of marital assets. Plaintiff contends that she was entitled to a proportionately larger share of the marital assets to compensate her for defendant’s alleged dissipation of those assets during the pendency of the divorce action, in direct contravention of the court’s injunction and restraining order.

Plaintiff brought this action for divorce in September 1979. The parties’ marital assets consisted of a residence, an automobile, a pickup truck and camper, several horses, trailers, and related tack, various life insurance policies, guns, camping equipment, furniture, jewelry, personal items, an ongoing business known as Fleet-way, Inc., and a defunct business known as Gill’s Tire Market.

In October 1979, at plaintiff’s instance and request and pursuant to stipulation, a restraining order was entered against defendant by which he was enjoined from encumbering or disposing of any marital property and any assets of Gill’s Tire Market or Fleetway, Inc., without the express prior knowledge and approval of plaintiff or without first obtaining an appropriate court order. At the time the order was entered, defendant was operating both businesses and making his living therefrom. Plaintiff did not participate in the management of either of the businesses, and after the restraining order was entered, defendant continued to operate them.

In December 1979, plaintiff sought and obtained an order bifurcating the divorce issue. A decree of divorce was obtained in January 1980, reserving the issue of property division for a subsequent proceeding. At the time the divorce decree was entered, defendant was continuing to operate the businesses known as Gill’s Tire Market and Fleetway, Inc.

In October 1980, following the bankruptcy of Gill’s Tire Market and after Fleetway, Inc., had also failed, defendant utilized the remaining assets to open a retail tire store, which he operated under the name of Tire City for approximately two years. Two months prior to trial, defendant sold the assets of Tire City for $15,000, a sum nearly equal to Tire City’s indebtedness.

At trial, the focal issue was plaintiff’s contention that defendant had intentionally secreted or disposed of marital assets to deprive plaintiff of her rightful share. The trial court specifically found that defendant had not hidden any of the assets of the marital estate and had not attempted to deprive plaintiff of her interest in those assets. The court then divided the assets on hand and awarded generally equal shares to each party. The court also ordered that the accounts receivable from the Fleetway Tire Market business be divided equally; that defendant pay the business debts and the marital debts incurred prior to separation; that any proceeds remaining from the business bankruptcy be divided equally; and that defendant pay all income tax obligations owing for the years 1977-1979.

The court limited its award of attorney fees to those incurred up to the time the decree of divorce was obtained in January 1980. The court made no award for fees incurred by plaintiff for the purpose of showing that defendant had intentionally dissipated the marital assets.

The long-recognized and oft-repeated standard of appellate review permits this Court to overturn the judgment of the trial court only when the evidence clearly preponderates to the contrary or the trial court has abused its discretion or misapplied principles of law.¹ In adjusting the financial and property interests of parties to divorce, the trial court is afforded considerable discretion,² and its actions are cloaked with a presumption of validity.³

The record reflects that although Gill’s Tire Market and Fleetway, Inc., were not prospering, the parties were dependent upon the operation of those businesses for their livelihood. It necessarily follows that at the time the court entered its order restraining the disposition of marital assets, it was within the contemplation of all concerned that defendant would continue to operate the businesses.

It was reasonable for the trial court to conclude that plaintiff was aware of' defendant’s business revenues and that plaintiff knew defendant had transferred the remaining assets of the defunct Fleetway, Inc., to the new business operated under the name of Tire City. This conclusion is supported by the fact that commencing in October 1979 and continuing to the time of trial, plaintiff engaged in extensive discovery proceedings seeking evidence concerning defendant’s financial affairs and the businesses he continued to operate, specifically Tire City. Furthermore, no effort was made by plaintiff to restrain defendant from operating his businesses, and no citation for contempt was sought or obtained for any violation of the court’s restraining order.

Trial of this case extended over a period of three days, and the record is replete with evidence that bears upon the property division issue. Not unexpectedly, most of the testimony was controverted, but a canvass of the record fails to disclose any evidence that clearly preponderates contrary to the findings of the trial court that defendant did not hide or secrete marital assets in violation of the court’s order or the rights of plaintiff.

Plaintiffs remaining contention on appeal is that the court abused its discretion in limiting the award of attorney fees. In substance and effect, the court concluded that the legal expense of conducting the extensive discovery proceedings engaged in by plaintiff was not reasonable and necessary.

In light of plaintiff’s failure to demonstrate either by way of discovery or by evidence elicited at trial that defendant did in fact secrete or dissipate marital assets, the court did not abuse its discretion in not requiring defendant to assume and pay the additional fees plaintiff incurred.

The propriety of the court’s limited award of attorney fees is further indicated by the relative ability of the parties to pay their respective attorneys for services rendered. Plaintiff was employed and earning approximately $12,000 per annum, and defendant was unemployed and without income from any source.

Affirmed. No costs awarded.

STEWART, J., concurs.

1 . Wiese v. Wiese, Utah, 699 P.2d 700, 701 (1985).

2 . Argyle v. Argyle, Utah, 688 P.2d 468, 470 (1984).

3 . Savage v. Savage, Utah, 658 P.2d 1201, 1203 (1983).