Allen v. Allen

319 P.3d 770

753 Utah Adv. Rep. 39

Colter Thomas ALLEN, Petitioner and Appellee,

v.Lacee C. ALLEN, Respondent and Appellant.

No. 20120925–CA.

Court of Appeals of Utah.

Jan. 30, 2014.

Douglas L. Neeley, Manti, Attorney for Appellant.

Virginia L. Sudbury and Alison Satterlee, Attorneys for Appellee.

Judge STEPHEN L. ROTH authored this Memorandum Decision, in which Judges J. FREDERIC VOROS JR. and MICHELE M. CHRISTIANSEN concurred.

Memorandum Decision

ROTH, Judge:

¶ 1 Colter Thomas Allen (Husband) and Lacee C. Allen (Wife) were married on June 13, 2009, and are the parents of a young daughter (Daughter). Husband filed for divorce in 2010, and after a bench trial, the trial court awarded Husband physical custody of Daughter, refused Wife's request for alimony and attorney fees, and awarded both the marital home and the marital debt to Husband. Wife appeals, arguing that the court did not make adequate findings to support its decisions. We affirm in part, reverse in part, and remand for further proceedings.

¶ 2 Husband filed a petition for divorce on September 22, 2010. The Sixth District Court held a bench trial on the matter on June 15, 2012. The parties' primary disagreements concerned Daughter's physical custody, division of the marital home, alimony, and attorney fees.

¶ 3 At trial, Husband put on testimony from a neighbor who claimed to have seen several late-night parties at the couple's home while Husband was away for “deployments or on training sessions” with the Army National Guard. The neighbor also testified that Wife's vehicle was parked at the couple's driveway after 7:00 p.m. “[j]ust a couple nights a week.” Husband testified that Wife would “stay out ‘til the wee hours of the morning or not come home at all” at least “four nights a week” and that she had an affair four months after the couple's wedding. With respect to the couple's debts and assets, Husband testified that he purchased a home in June 2008 for $96,000, a full year before marrying Wife. After speaking with a realtor and looking at prices for similar homes in his area, Husband believed the home was worth about $80,000, but at the time he owed $90,000 on the mortgage. Other marital debts included $1,100 for Wife's tuition at an applied technology college, $1,000 in supplies for a nail salon Wife planned to open, $3,500 for furniture, and another $300 for shopping and dining costs Wife charged to Husband's credit card. Husband stated that his gross monthly income was $4,854.

¶ 4 Wife testified that she seldom stayed out late with her friends, “not even once a week.” With respect to child custody, Wife and her mother both testified that Wife was the primary caregiver, but Wife acknowledged that Husband “stepped up” as a father after the couple separated. Wife also expressed concern about Husband's emotional stability, citing an unsent message she found on his phone that she believed read “like a suicide letter.” A family friend testified that Wife appeared to have a stronger bond with Daughter than Husband. In regard to marital property, Wife stated that the tax-assessed value of the home “was $102,000 ... or $103,000” and opined that the property was probably worth more, apparently becauseshe generally recalled the mortgage bank's appraisal being higher than that. Wife's pay statements showed that she worked fifteen to twenty hours per week at a bank, earning a gross monthly income of a little less than $1,000. After the couple's separation, her monthly expenses exceeded her income by about $600. As a result, Wife indicated that she was not able to pay back any of the marital debt at that time. Finally, on the issue of attorney fees, Wife testified that she funded her representation with a $2,300 personal loan and still owed an additional $1,800 that she did not have the resources to repay beyond making a $112 monthly payment.

¶ 5 The trial court awarded Husband physical custody of Daughter and denied Wife's requests for alimony and attorney fees. The court awarded the marital home to Husband, along with the associated mortgage, and allocated all of the remaining marital debt to him as well. With respect to child custody, the court found that “[b]oth parents have been actively involved in [Daughter]' s life, and both have provided a substantial portion of all the different kinds of nurturing [Daughter] requires.” Ultimately, even though “both parents appear[ed] nearly equally capable of caring for [Daughter],” the court determined that “the stability offered by Husband outweigh[ed] the apparent empathy of Wife.” In regard to the marital home and marital debt, the court found that “Husband's income is both higher and more reliable than Wife's” and that the couple had not “appreciably improved their equity in the home during their marriage”—equity that the court found to be negligible. In refusing Wife's request for alimony, the court stated, “No alimony is awarded because Wife did not become dependent on Husband because of their marriage” and made no other factual findings on the issue. Finally, the court denied Wife's request for attorney fees by simply noting, “Each party should pay his or her own attorney's fees.” Wife appeals.

¶ 6 Wife challenges the trial court's decision awarding Husband custody of Daughter and denying her alimony and attorney fees. She also challenges the court's division of marital assets. We affirm the child custody award and the division of marital assets. However, we set aside the trial court's denial of alimony and attorney fees and remand for further consideration.

I. Child Custody

¶ 7 Wife argues that the trial court's findings of fact are insufficient to support its child custody award. Specifically, she asserts that the court's custody award was flawed by its failure “to sufficiently consider the past conduct and demonstrated moral standards of each of the parties” as Utah Code section 30–3–10 requires. She also asserts that the court made no findings regarding two other statutory factors: (1) “which party is most likely to act in the best interest of the child, including allowing the child frequent and continuing contact with the noncustodial parent,” and (2) “the extent of bonding between the parent and child, including the depth, quality, and nature of the relationship between a parent and child.” As a result, Wife argues, the court abused its discretion when it awarded Husband custody of Daughter. We conclude that the court's custody decision was adequately supported.

¶ 8 Child custody determinations are “highly personal and individual, and do not lend themselves to the means of generalization employed in other areas of the law.” Roberts v. Roberts, 835 P.2d 193, 196 (Utah Ct.App.1992). As a result, “[u]nlike support and alimony determinations, ... there is no checklist of custody factors,” id., that “can govern custody determinations in all cases,” Smith v. Smith, 726 P.2d 423, 426 (Utah 1986). But “the factors relied on by the trial judge in awarding custody must be articulable and articulated in the judge's written findings and conclusions.” Id.Utah Code sections 30–3–10 and 30–3–10.2 list a number of factors courts consider when making a child custody award, including “which parent is most likely to act in the best interest of the child, including allowing the child frequent and continuing contact with the noncustodial parent,” Utah Code Ann. § 30–3–10(1)(a)(ii) (LexisNexis 2013), ¹ “the extent of bonding between the parent and child, meaning the depth, quality, and nature of the relationship between parent and child,” id. § 30–3–10(1)(a)(iii), and “any other factors the court finds relevant,” id.§ 30–3–10.2(2)(j). We review a trial court's custody award for an abuse of discretion. Grindstaff v. Grindstaff, 2010 UT App 261, ¶ 3, 241 P.3d 365.

¶ 9 We conclude that the trial court appropriately considered and balanced the pertinent statutory factors. While the court noted instances in which Wife's conduct deviated from appropriate bounds, it took a far more nuanced and balanced approach than Wife acknowledges, giving little weight to the circumstances that led to the couple's separation: “Even if the Court could award custody based upon who is responsible for the failed marriage, the Court lacks the wisdom to determine which of the parties is responsible for that loss.” Instead, the court focused on individual factors that are directly pertinent to both parties' ability to care for Daughter, beginning with an acknowledgement that “both parents appear nearly equally capable of caring for [Daughter], though in different ways.” See generally Tucker v. Tucker, 910 P.2d 1209, 1215 (Utah 1996) (noting that child custody decisions “may frequently and of necessity require a choice between good and better” (citation and internal quotation marks omitted)).

¶ 10 In particular, the trial court's factual findings address the two statutory factors Wife claims the court ignored. First, the court considered the moral character of both parties, not just Wife's. As we have discussed, see supra ¶¶ 34, the court heard conflicting testimony regarding Husband's emotional stability and Wife's maturity. It specifically found that Husband is “stable” while Wife is “immature,” with a tendency to put her needs above those of others, including Daughter. The court may not have discussed Husband's moral character as extensively as it did Wife's, but it clearly credited testimony about Wife's self-indulgent lifestyle and discounted Wife's claims that Husband was emotionally unstable or had other disqualifying character flaws:

Though Wife is kind and loving with [Daughter], Wife is still quite immature. The Court believes the accounts of Husband and his neighbor which paint Wife as very interested in “partying.” Part of Wife's tendency to “party” may be attributed to her desire to get away from Husband, but the Court believes that she also has difficulty putting the needs of others, even her child, above her own...