Kidd v. Kidd

2014 UT App 26, 321 P.3d 200, 753 Utah Adv. Rep. 26, 2014 WL 325416, 2014 Utah App. LEXIS 28
CourtCourt of Appeals of Utah
DecidedJanuary 30, 2014
DocketNo. 20120460-CA
StatusPublished
Cited by26 cases

This text of 2014 UT App 26 (Kidd v. Kidd) 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
Kidd v. Kidd, 2014 UT App 26, 321 P.3d 200, 753 Utah Adv. Rep. 26, 2014 WL 325416, 2014 Utah App. LEXIS 28 (Utah Ct. App. 2014).

Opinion

Opinion

ROTH, Judge:

T1 Clark Bruce Kidd (Husband) appeals from several orders of the trial court related to the dissolution of his marriage to Elaine J. Kidd (Wife). We affirm.

BACKGROUND 1

T2 Husband and Wife married on March 13, 1980, and divorced on March 9, 2012, after thirty-two years of marriage. Although the parties were able to agree on most of the terms of their divorcee, they could not resolve four issues that are now the subject of this appeal: alimony; Husband's demand that as a condition of receiving certain personal assets, Wife pay him the $4,505 she had withdrawn from a joint account; distribution of a thrift savings plan (TSP) account;2 and removal of Wife's name from the mortgage on the marital home. After a bench trial on November 18, 2011, the trial court entered findings of fact and conclusions of law in a memorandum decision.

I. Alimony

13 At the time of the trial, Husband, who was fifty-six, earned a gross monthly income of $5,925. He also collected another $2,824 per month from pensions and rental income and had approximately $87,000 in savings. Wife, age fifty-five, was then unemployed, but she had worked at a Wal-Mart pharmacy between 2006 and 2010 for approximately thirty-five hours per week at $9.80 per hour. The trial court heard evidence that Wife had, at some time in the past, partially completed the coursework for a college degree but that she had experienced difficulty in maintaining employment due to depression. For purposes of its alimony determination, the court imputed to Wife a salary of $9 per hour or $1,560 per month. The court accepted both parties' estimates of their respective monthly expenses, which amounted to $7,270 for Husband, including income taxes and other deductions, and $6,078 for Wifes.3 The parties' combined expenses were approximately $3,500 more than their combined income. 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 [203]*203amount 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), caleulated from October 1, 2010, when temporary alimony began, to December 19, 2011, when permanent alimony was awarded.

II. Property Division

T4 The parties reached agreement about the division of most of their assets. However, $4,505 that Wife had withdrawn from a marital account remained in dispute, as did interpretation of the provision of their settlement agreement that related to division of Husband's TSP account.

A. The $4,505 Withdrawal

T5 Shortly after the parties' separation, Wife withdrew $4,505 from a joint bank account primarily used by Husband. Eventually, Wife paid the $4,505 to Husband, although the parties dispute the cireumstances that led her to do so.

T6 At trial, Wife testified that when she attempted to pick up personal property from the former marital home, as the parties had earlier agreed she could, Husband prevented her entry, stating, "[YJou're not taking anything until we've settled the [$]4,505 that you owe me from my account that you took." Wife testified that she wrote a check on the spot for $4,505 so that she could collect her personal property.

T7 Husband testified, however, that the parties had reached a tentative agreement on how to divide their personal property but renegotiated because Wife wanted some additional property, primarily a piano, that they had yet to divide. According to Husband, the parties reached a new agreement in which Wife agreed to pay the $4,505 in exchange for the piano and some other items. Husband explained that they had settled this payment when they had divided their final joint banking account, which contained $10,788 of equity withdrawn from the marital home. Wife was entitled to half that amount ($5,894), but Husband claims that because she had agreed to pay the $4,505 she had withdrawn from another account, he paid her the difference between her share and the withdrawal, or $899, by check. The trial court resolved this dispute in Wife's favor and "awarded [her] a credit of $4,505.00 as a refund for funds [Husband] obtained from [her] by way of unlawful coercion."

B. The TSP Account

1 8 During the marriage, Husband contributed to a TSP account. Prior to trial, Husband and Wife had executed a settlement agreement, in which they agreed to "evenly divide the TSP savings plan as of March 31, 2011." It appears that the parties intended that these assets be divided in advance of the entry of a final divorcee decree, but by the time of trial, no Qualified Domestic Relations Order (QDRO) had been presented to the account administrator to distribute the assets. A dispute had also arisen regarding whether the TSP account was to be divided by assigning shares to Wife or by paying her their cash value. The trial court received evidence on the number of shares in the account and the value of the account as of four separate dates: October 1, 2010, the date that temporary alimony was ordered; March 31, 2011, the date agreed upon in the settlement agreement; April 1, 2011, the date after the one agreed upon in the settlement agreement; and October 28, 2011, just before trial. The number of shares had steadily increased between October 1, 2010, and October 28, 2011, due to Husband's continued contributions to the account after the parties' separation. The value of each share had also increased between October 1, 2010, and April 1, 2011, but by October 28, 2011, the value of each share had decreased. Wife argued that the TSP account could not be [204]*204properly allocated by simply dividing the number of shares; rather, she contended, "IyJou have to figure out the value and then make an award of money that ... offsets that value."

T9 The trial court concluded that the settlement agreement contemplated that the parties would evenly divide the value of the TSP account rather than the shares. It calculated the account's value by multiplying the number of shares on April 1, 2011 (29924822 shares) by the value of each share as of October 28, 2011 ($21.1507 per share). The court explained that it used October 28 as the valuation date so as not to penalize Husband for any decrease in share value due to the delay in dividing the account.4 According to that calculation, the account had a value of $63,293.09, and the court awarded Wife $81,646.55 in accordance with the parties' agreement to "evenly divide the TSP savings plan."

IIL The Mortgage on the Marital Home

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Cite This Page — Counsel Stack

Bluebook (online)
2014 UT App 26, 321 P.3d 200, 753 Utah Adv. Rep. 26, 2014 WL 325416, 2014 Utah App. LEXIS 28, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kidd-v-kidd-utahctapp-2014.