Carlton v. Carlton ( 1988 )

OPINION

GREENWOOD, Judge:

Defendant, Frank Hayden Carlton, appeals the trial court’s property distribution in a divorce proceeding, claiming that the trial court did not enter sufficient findings of fact and inequitably awarded property. We vacate the property award and remand.

Plaintiff, Verlora Carlton, and defendant were married on June 18, 1979, separated in December 1984 and divorced in August 1986. At the time of trial, plaintiff was forty-nine and defendant was sixty-four. Throughout the marriage, defendant worked as a certified public accountant and earned over $100,000 gross annual income during most of the marriage. Plaintiff did not work during the marriage, but before the marriage she had operated a cosmetology shop and earned approximately $1,100 gross income per month. At the time of trial, plaintiff’s gross income was $800 per month.

Defendant testified at trial that his premarital assets totalled $761,925 while plaintiff testified that she had $24,935 in assets at the time of the marriage. Both parties presented exhibits regarding the values of their assets. Defendant claimed to have gained only about $75,000 in additional assets during the course of the marriage. However, plaintiff claimed that she was entitled to assets totaling $201,591.85 in value as her share of the parties’ marital estate. Without placing a value on the items constituting the parties’ assets, the court found that “the marital appreciation in the assets which the parties acquired during the marriage and/or maintained during the marriage, totals $255,327.00.” The court then subtracted plaintiff’s premarital assets of $27,228 from that amount and awarded plaintiff one-half of the adjusted marital estate of $228,099 plus the value of her premarital assets, for a total of $144,277.

On appeal, defendant claims the trial court erred in failing to make sufficient findings of fact as to the value of the parties’ assets and that the property distribution is inequitable because it distributes a substantial portion of defendant’s premarital assets to plaintiff.

In divorce proceedings, the trial court is given considerable discretion in fashioning an equitable property distribution, Jones v. Jones, 700 P.2d 1072, 1074 (Utah 1985); Sampinos v. Sampinos, 750 P.2d 615, 618 (Utah Ct.App.1988), and its findings will not be disturbed absent an abuse of discretion. Boyle v. Boyle, 735 P.2d 669, 670 (Utah Ct.App.1987). The trial court must make findings on all material issues, and its failure to do so constitutes reversible error “unless the facts in the record are ‘clear, uncontroverted, and capable of supporting only a finding in favor of the judgment.’” Acton v. J.B. Deliran, 737 P.2d 996, 999 (Utah 1987) (quoting Kinkella v. Baugh, 660 P.2d 233, 236 (Utah 1983)). In addition, the findings must be sufficiently-detailed and consist of enough subsidiary facts to reveal the steps the court took to reach its conclusion on each factual issue presented. Acton, 737 P.2d at 999; Lee v. Lee, 744 P.2d 1378, 1380 (Utah Ct.App.1987). Finally, the trial court’s failure to include property valuations in divorce actions may constitute an abuse of discretion sufficient to require remand for determination. Jones, 700 P.2d at 1074; Boyle, 735 P.2d at 671.

This divorce proceeding involved numerous different assets including at least thirty different stocks and bonds, six savings accounts, four checking accounts, several bronze statutes, the parties’ residence, IRAs and a Keogh plan. Defendant’s exhibits valued the assets at the time of the marriage and at the time of the separation, which was a year and a half before the divorce decree was entered. Defendant’s exhibits also separately itemized the securities acquired during the marriage. Plaintiff’s proposed property distribution listed only a portion of the parties’ assets apparently valued as of the trial in December 1985.

The testimony at trial and the exhibits clearly indicate that the parties hotly contested the values of many of the assets. For example, the parties’ exhibits differ on the value of the E.F. Hutton Investment account. Plaintiff’s exhibit values the E.F. Hutton Investment account at $113,000, while defendant’s exhibit indicates that the account decreased $62,400 in value during the parties’ marriage and was worth only $29,217 at the time of the separation. Defendant conceded, however, that the E.F. Hutton Investment account increased in value from $29,217 at the time of the separation to $113,000 at the time of the trial but testified that he believed the estate should be valued as of the date the parties separated. The trial court found that the parties acquired “stocks and bonds in an investment account with E.F. Hutton Investment Company” during the marriage but did not place a value on the account. In addition, the findings do not state whether the court valued the E.F. Hutton Investment account as of the time of the separation or as of the time of the divorce. The values of many other assets were also controverted.

Based on the trial court’s findings, we cannot determine how the court arrived at its conclusion that the marital assets had appreciated by $255,327 during the marriage. The trial court did not clearly state which assets were marital or premarital nor did it value all of the individual assets. The general rule is that:

Premarital property ... may be viewed as separate property, and in appropriate circumstances, equity will require that each party retain the separate property brought to the marriage. However, the rule is not invariable. In fashioning an equitable property division, trial courts need consider all of the pertinent circumstances.

Burke v. Burke, 733 P.2d 133, 135 (Utah 1987).

Because we cannot determine how the court arrived at the amount of appreciation of the marital estate during the parties’ seven year marriage, we are also unable to determine whether the court allowed each party to retain all or some portion of his or her separate property. Although the findings indicate that the parties were awarded most of what was claimed as premarital property, the findings do not specify whether some of the assets, such as the savings and checking accounts, were premarital property. For example, the court found that the parties had acquired “numerous bank accounts” during the marriage, but did not specify if all of the bank accounts distributed in the divorce were acquired during the marriage. In the event the court awarded plaintiff some of defendant's premarital property, the court must follow Burke and make findings which explain the circumstances warranting an award of defendant’s premarital property to plaintiff.

In addition, we cannot determine from the court’s findings if the parties’ assets were valued at the time of the divorce decree or at the time of the separation. Generally, assets are valued at the time of the divorce decree. Berger v. Berger, 713 P.2d 695, 697 (Utah 1985); Peck v. Peck, 738 P.2d 1050, 1052 (Utah Ct.App.1987). “However, where one party has dissipated an asset, hidden its value, or otherwise acted obstructively, the trial court may, under its broad discretion, value the property at an earlier date, i.e., separation.” Id. The findings in this case do not indicate whether the court valued the assets at the time of the divorce or the time of the separation. However, it appears from the evidence received by the court that some of the assets were only valued as of the time of the parties’ separation.

Further, the facts in the record are not “clear, uncontroverted, and capable of supporting only a finding in favor of the judgment.” Acton, 737 P.2d at 999. The dissent urges application of the methodology utilized in Olson v. Olson, 704 P.2d 564 (Utah 1985). In Olson, the court failed to make a finding of the wife’s financial needs in determining an alimony award. The Utah Supreme Court, nevertheless, affirmed the alimony award, finding it was appropriate if the court assumed the wife’s claimed financial need, which the husband disputed, was true.

The Olson approach is not applicable in this case where the parties disputed many values, and we would have to speculate on the trial court’s view as to the value of each asset. Unlike Olson, we cannot simply assume as true one disputed value. Instead, we must speculate on numerous disputed facts. In addition, the Olson Court found that if it added a finding of financial need in the amount claimed by the wife, the Court would not disturb the alimony award. This case differs because we cannot determine if the properly distribution was fair and equitable without a valuation of each asset and a designation as to which property was premarital and marital. Furthermore, the difficulty in applying Olson is compounded by the court’s failure to distinguish between separation and time of trial valuations.

Therefore, we hold that the trial court’s failure to make findings as to the value of the parties’ assets constitutes reversible error requiring this Court to remand for entry of additional findings. On remand, the court must make findings as to the value of the parties’ various assets, and, if the court awards plaintiff any of defendant’s premarital property, the court must enter findings which explain the circumstances justifying such award. See Burke, 733 P.2d at 135. In addition, the court’s findings must indicate whether the court is valuing the parties’ assets as of the time of the divorce or as of the time of the separation.

Judgment vacated as to the property award and remanded for further proceedings consistent with this opinion.

DAVIDSON, J., concurs.