Court Can Base It’s Rulings on Hypotheticals; and Animal Feed is Not Included in Child Support or Alimony

Farnsworth v. Farnsworth, 2012 UT App. 282, Utah Court of Appeals, October 12, 2012

Husband and Wife were divorced.  Wife was awarded alimony based on a standard of living that would include a hypothetical $140,000 home.  The Court also awarded $200/month for the cost of animal feed for a minor daughter’s horses.  Husband appealed.

The Court of Appeals found that the relying on the $140,000 home was reasonable without any evidence to support such a number.  The court also found that the $200 for the animal costs appeared to be more related to the child’s extracurricular activity than to Wife’s standard of living.  Because it was an extracurricular expense, the Court of Appeals amended the award to deduct the cost of the animal feed.

The Court was divided on the both issues with a dissenting opinion on each.  Judge Orme dissented on the alimony award and asserted that the trial court should not have awarded alimony based on a hypothetical home.  Jude Orme accused the trial court of punishing husband for his fault for artificially lowering the parties living conditions during the marriage; and since fault cannot be used as a factor (keep in mind the new changes to U.C.A. §30-3-5, passed by legislature, not yet signed by Governor). 

Judge Thorne believed that the $200 for the feed should have been included in the alimony award because Wife’s standard of living had always included horses.    

Full opinion available at: http://www.utcourts.gov/opinions/appopin/farnsworth10122012.pdf

Property Division is to be Equitable not Equal and Alimony Must have a Conclusion

Boyer v. Boyer, 2011 UT App 141 (Utah Court of Appeals, May 5, 2011)

Husband and Wife divorced.  Husband was awarded his retirement and the business.  He was further awarded a majority of the debt and was ordered to pay alimony.  Wife appealed the property division claiming she should be awarded a portion of the business and Husband’s retirement.  She also appealed the alimony award arguing that the Court failed to consider husband’s fault, (Husband had given wife a STD) and wife’s health.  Wife also appealed the Court’s prospective downward adjustments to alimony.

The Court of Appeals affirmed the property division, finding that while not equal as to the individual parts was equitable when evaluating the entire award.  As to alimony, The Court of Appeals found that there was no need to analyze Wife’s health, because that is not one of the statutory factors.  The Court did not have to analyze fault because it is an optional factor (“Court may consider fault”).  However, the Court remanded the award for further findings as to the prospective downward adjustments (which the Court of Appeals found would be appropriate and consistent with rehabilitative alimony, the trial simply needed to categorize the alimony award).  The Court of Appeals further remanded for findings as to the date of conclusion of alimony. 

Full Decision available at  http://www.utcourts.gov/opinions/appopin/boyer050511.pdf

Again, Fault is Not a Factor in Alimony, and Failure to Preserve = Wavier

Fairbanks v. Fairbanks, 2010 UT 31, (Utah Court of Appeals, February 11, 2010).

Husband and wife were divorced Court awarded Wife alimony and her premarital property. Husband appealed. 

Husband argued that he too had made premarital contributions and the trial court did not compensate him.  The Court of Appeals found that Husband failed to preserve this issue and refused to consider any arguments on this issue. 

Alimony.  Husband also argued that Wife should not have awarded alimony based on her fault in the breakdown of the marriage.  The Court disagreed with husband and affirmed the trial court, finding that fault is not a factor in awarding alimony (because the legislature has not defined it).  Further, the Court found that if fault was a factor, Wife had insufficient fault in this case.  Specifically (1) Wife’s refusal to engage in sexual relations after  Husband to her he felt like he had been raped was not cruel treatment; (2) because the parties mutually agreed that Wife would move, there was no desertion; and (3) Wife’s failure to give Husband financial support because she had no surplus does not qualify as neglect.

Husband argued that the trial court improperly admitted evidence.  The Court of Appeals made no ruling on these issues because Husband failed to object at the time the evidence was offered at trial, and thereby, waived any objection.

Concurrence: We should consider fault as a factor, but since we rely on precedent, we cannot consider it.

Full Decision available at http://www.utcourts.gov/opinions/mds/fairbanks021110.pdf

Alimony: Fault No Longer a Factor When Considering Alimony

Mark v. Mark, 2009 UT App. 374, (Utah Court of Appeals December 10, 2009).

Wife earned significantly more than Husband. Husband was in school was to complete his degree in one year. The trial court awarded husband $1200 per month as rehabilitative alimony for one year, and denied his request for attorney fees. Husband appealed.

Husband argued that the court failed to make adequate findings to support the alimony award, that the alimony should be permanent (instead of rehabilitative) and that considering fault was inappropriate. The appellate court Reversed the trial court’s alimony award finding without adequate findings the Appellate Court could not determine the validity of the award. The Court further found that Husband had weak employment prospects and that it was unlikely that he could earn enough to maintain the lifestyle enjoyed during the marriage. Thus, the award of only rehabilitative alimony was an abuse of their discretion. Finally, because the policy of alimony is to provide support and not to reward or punish, adjusting any award because of fault is inappropriate. Remanded to trial court for further findings all factors, but eliminating fault as a factor

Court Affirmed the non-award of attorney fees. The Court found that the trial court must only make findings if it makes an award of attorney fees. If there is not award, there is not requirement to make findings.

DISSENT: The trial court should consider fault. The legislature has given the courts the factor of fault and failing to consider it simply because it is not defined is replacing the legislature’s judgment with our own.

Full Decision available http://www.utcourts.gov/opinions/appopin/mark121009.pdf