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07/02/92 JAN WATSON v. WAYNE B. WATSON

July 2, 1992

JAN WATSON, PLAINTIFF AND APPELLEE,
v.
WAYNE B. WATSON, DEFENDANT AND APPELLANT



Fourth District, Utah County. The Honorable Dennis L. Draney

Before Judges Greenwood, Jackson, and Russon.

The opinion of the court was delivered by: Russon

RUSSON, Judge:

Wayne Watson appeals the district court's decree of divorce with respect to alimony, child support, visitations rights and property division. We affirm.

I. FACTS

The Watsons were married in Springville, Utah on July 28, 1984. On February 12, 1990, Mrs. Watson filed a complaint for divorce, which was granted on March 18, 1991. The parties stipulated that Mrs. Watson would be awarded custody of the minor child subject to reasonable visitation by Mr. Watson. Mrs. Watson was awarded alimony in the amount of $2000 per month from October 1990 through September 1992, and $1,500 per month thereafter until such time as Mrs. Watson remarried, cohabited or died. She was further awarded child support in the amount of $660 per month. The court also made an extensive property division between the parties.

Mr. Watson appeals the divorce decree, claiming that the trial court erred: (1) in determining alimony; (2) in determining child support; (3) in determining Mr. Watson's visitation rights with the minor child; (4) in awarding Mrs. Watson a vehicle owned by the corporation that employed Mr. Watson, as well as awarding Mrs. Watson certain property owned by Mr. Watson prior to the marriage; (5) in computing the respective parties' equity in the residence and real property; (6) in awarding costs to Mrs. Watson; and (7) in denying Mr. Watson's motion for a new trial based upon alleged inappropriate behavior of Mrs. Watson's counsel.

II. ANALYSIS

We address Mr. Watson's claims in the order outlined above. *fn1

A. Alimony

Mr. Watson claims that the trial court erred in awarding Mrs. Watson permanent alimony. In formulating alimony awards, the trial court has broad discretion, and its decisions will not be overturned absent an abuse of discretion or manifest inJustice. See Schindler v. Schindler, 776 P.2d 84, 90 (Utah App. 1989). In Schindler, this court outlined the factors to be considered by a trial court in determining alimony:

In awarding alimony, appellate courts require the trial court to consider each of the following three factors: (1) the financial conditions and needs of the receiving spouse; (2) the ability of the receiving spouse to produce a sufficient income for him or herself; and (3) the ability of the responding spouse to provide support. If these factors have been considered, we will not disturb the trial court's alimony award unless such a serious inequity has resulted as to manifest a clear abuse of discretion. The ultimate test of an alimony award is whether the party receiving alimony will be able to support him or herself "as nearly as possible at the standard of living . . . enjoyed during the marriage." English v. English, 565 P.2d 409, 411 (Utah 1977).

Id. (citations omitted).

With respect to Mrs. Watson's financial condition and her ability to produce income, the court found, based upon the evidence at trial, that Mrs. Watson did not work outside the home, and in fact, there was an "agreement by the parties that [Mrs. Watson] would not work outside the home but would remain in the home to care for the parties' minor child." Therefore, the court "declined to impute any income to the plaintiff, at lest until the child is in school on a full time basis." With respect to Mr. Watson's ability to provide support, the court found, based on the parties' tax returns from 1986 to 1990, that Mr. Watson had an average gross income of $93,668.75. Accordingly, the court entered the following finding:

Based upon [Mr. Watson's] ability to earn, and the needs of [Mrs. Watson ], the Court awards alimony to [Mrs. Watson] in the amount of $2000.00 per month, beginning with the month of October 1990, through and including the month of September 1992. Said alimony payments may be paid in two equal monthly installments of $1000.00 each due on the 5th and 20th days of October, 1990 and continuing thereafter through and including September of 1992, when the parties' minor child is scheduled to become enrolled in school on a full time basis.

Beginning with the month of October, 1992, [Mrs. Watson's] alimony award shall be reduced to the sum of $1,500.00 per month. . . .

Said alimony payments shall continue until such time as the plaintiff remarries, dies or cohabits as defined by statute, or until further order of the court.

(Emphasis added.)

The trial court's written findings demonstrate that the court considered the factors set out in Schindler, and those findings are supported by the evidence. Therefore, we conclude that the trial court did not abuse its discretion in determining the alimony award.

B. Child Support

Mr. Watson argues that the trial court erred in calculating the child support award. In reviewing child support awards, "we accord substantial deference to the trial court's findings and give it considerable latitude in fashioning the appropriate relief." Woodward v. Woodward, 709 P.2d 393, 394 (Utah 1985) (citations omitted). "We will not disturb that court's actions unless the evidence clearly preponderates to the contrary or there has been an abuse of discretion." Id.

Specifically, Mr. Watson argues that the trial court failed to offset his child support obligation by the amount that he pays in medical and dental premiums for the minor child, as required by Utah Code Ann. § 78-45-7.7(2)(b) (1992), which directs the trial court to:

Calculate each parent's proportionate share of the base combined child support obligation by multiplying the combined child support obligation by each parent's percentage of combined adjusted gross income, and subtracting from the products the children's portion of any monthly payments made directly by each parent for medical and dental insurance premiums.

To mount a successful challenge to the trial court's finding with respect to the child support calculation, Mr. Watson is required to marshal all the evidence supporting the court's finding and demonstrate that the evidence is insufficient to support that finding. See Scharf v. BMG Corp., 700 P.2d 1068, 1070 (Utah 1985). Mr. Watson fails to satisfy that burden in the present case. Therefore, we assume the record supports that finding, Crouse v. Crouse, 817 P.2d 836, 838 (Utah App. 1991), and conclude that the district court did not abuse its discretion in setting the child support award.

C. Visitation

Mr. Watson argues the trial court erred in determining his visitation rights with the minor child. Specifically, he contends that the court improperly restricted his "normal" visitation rights by ordering that he return the minor child to Mrs. Watson one-half hour prior to church services at the Conclusion of his alternating weekend visitation.

"In determining visitation rights, the trial court must 'give the highest priority to the welfare of the children over the desires of the parent.'" Ebbert v. Ebbert, 744 P.2d 1019, 1022 (Utah App. 1987), cert. denied 765 P.2d 1278 (Utah 1988) (quoting Kallas v. Kallas, 614 P.2d 641, 645 (Utah 1980)). Accordingly, we will disturb the trial court's visitation determination only upon a showing that the trial court has abused its discretion. See Moon v. Moon, 790 P.2d 52, 54-55 (Utah App. 1990); Ebbert, 744 P.2d at 1023.

We have previously noted that the trial court's visitation schedule "should be realistic and reasonable and provide an adequate basis for preserving and fostering the child's relationship with the non-custodial parent." Ebbert, 744 P.2d at 1022. In the present case, the trial court awarded Mr. Watson the following visitation with the minor child:

(a) Alternating weekends from Friday at 6:00 p.m. until Sunday morning thirty minutes prior to the start of plaintiff's church meeting.

(b) During the week that the defendant does not have weekend visitation, Wednesday evening from 5:30 p.m. until 8:30 p.m.

(c) Christmas holiday beginning each Christmas day from 1:00 p.m. for one half of the total Christmas holiday vacation period.

(d) One two-week period and one one-week period during each ...


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