Kelley v. Kelley

OPINION

BILLINGS, Associate Presiding Judge:

¶1 Wayne Kelley appeals the trial court's judgment on remand from this court. We affirm.

*429BACKGROUND1

12 Wayne first married Sonia Kelley in May 1980. In July 1994, Wayne and Sonia agreed for financial reasons to divorcee and transfer title of Wayne's personal assets to Sonia. Following this divorce, "Wayne and Sonia made no change in their pre-divorce relationship or living arrangements," and, in essence, continued as husband and wife. Kelley v. Kelley, 2000 UT App 236, ¶ 5, 9 P.3d 171. In response to Sonia's July 1996 action for divorcee, the trial court found that Wayne and Sonia entered a common law marriage which commenced immediately following the July 1994 divorce. This common law marriage, which we upheld in Kelley, 2000 UT App 236 at ¶ 19, 9 P.3d 171, lasted five years before Wayne and Sonia divorced a second time. See id. at 128 n. 11.

T3 The trial court considered the entire length of the marital relationship in awarding Sonia alimony for sixteen years following the second divorce. In Kelley, however, we found that "[bJecause the [trial] court made no finding of extenuating cireumstances, the time for which the [trial] court may order alimony is limited ... to the [five-year] common law marriage." Id. at ¶ 28. Thus, we remanded "for the entry of further findings addressing whether extenuating cireum-stances exist," id. (quotations and citation omitted), in accordance with Utah Code Annotated section 30-8-5(7)(h) (1998),2 to justify an alimony award for longer than five years.

¶ 4 On remand, the trial court ordered that Wayne pay alimony to Sonia "at the rate of $3,000 per month from December 1998 for a period of ten years, or until remarriage of [Sonia], whichever occurs first." In so doing, the court found the following:

The provisions of the 1994 [divorce] decree were clearly inadequate as evidenced by the parties' continued actions. They continued to reside together in a common law relationship just as though no decree had ever been entered. [Wayne] continued to provide support to [Sonia] and the children in the [same] amount ... as ... before. [Sonia] and the children continued in the lifestyle to which they had been aceus-tomed. It was not until after the parties began having difficulty in 1996 that things changed.

We must now determine whether this finding of an essentially unbroken marital relationship for sixteen years describes an "extenuating circumstance" justifying an award of alimony for more than the five-year common law marriage.

ISSUES AND STANDARDS OF REVIEW

¶5 Wayne claims the trial court's findings on remand are insufficient to support the court's legal conclusion that "extenuating cireumstances" justify alimony for longer than five years. We review this application of findings to statutory law for an abuse of discretion. See Clark v. Clark, 2001 UT 44, ¶ 14, 27 P.3d 538; Willey v. Willey, 951 P.2d 226, 230 (Utah 1997). Wayne also challenges the sufficiency of the trial court's findings regarding the length of the parties' marriage in relation to the alimony award. We review these findings for clear error. See Clark, 2001 UT 44 at T 14, 27 P.8d 538.

ANALYSIS

T6 Wayne argues the trial court's findings on remand do not support a conclusion of "extenuating cireumstances" justifying alimony for longer than the five-year duration of Wayne and Sonia's second marriage. Under section 30-8-5(7)(b), "[allimo-ny may not be ordered for a duration longer than the number of years that the marriage existed unless, at any time prior to termination of alimony, the court finds extenuating circumstances that justify the payment of alimony for a longer period of time." (Emphasis added.) In Kelley v. Kelley, 2000 UT App 236, 9 P.3d 171, because alimony was awarded in response to Wayne and Sonia's divorcee from their second {(common law) marriage, see id. at ¶ 28, we determined the *430trial court must on remand find "extenuating cireumstances" if it were to award alimony for a period longer than the second marriage.

T7 We conclude the trial court's finding supports its legal conclusion of "extenuating cireumstances." Notwithstanding their initial divorce, the court found that Wayne and Sonia had a continuous marital relationship in either a solemnized or common law form for more than sixteen years. This unique situation presents the type of "extenuating circumstance" that could justify a longer than normal alimony award, and we thus conclude the trial court did not abuse its discretion.3

{8 Wayne next claims the trial court's findings regarding the duration of the relationship are insufficient because they are inconsistent with previous judicial determinations that the first and second marriages are legally distinct. We disagree. In Kelley, we upheld the trial court's determination that legally there were two separate marriages. See id. at T1 19, 34. We did not disturb the trial court's findings that the parties factually continued to behave as if no divorcee had occurred. See id. The fact of serial marriages is precisely why we remanded for an "extenuating cireumstances" determination to justify alimony beyond the length of the second marriage. On remand, the trial court reasonably found that, in spite of the two separate legal marriages, the continuing nature of Wayne and Sonia's personal and financial relationship, which in actual effect ignored the first divorce, presented extenuating circumstances. Thus, Wayne's appeal fails. 4

1 9 We affirm.

{10 I CONCUR: GREGORY K. ORME, Judge.

. The facts of this case are set out in further detail in Kelley v. Kelley, 2000 UT App 236, 9 P.3d 171.

. The 2003 version of this statute renumbered this provision as Utah Code Annotated section 30-3-5(8)(h) (Supp.2003), but for the sake of clarity and consistency, we will refer to the previous version of the statute.

. Our colleague, in his dissent, expresses concern that by approving a prior relationship as an extenuating circumstance we have rendered the limitations of Utah Code Annotated section 30-3-5(7)(h) (1998) meaningless. However, he misunderstands our logic. We are not stating that a prior relationship constitutes an extenuating circumstance; we are holding that under the unusual facts of this case the trial court did not abuse its discretion in finding extenuating circumstances where, after what was essentially a sham divorce, the parties continued to live in exactly the same factual situation as they had previously. Conversely, in the somewhat more usual, but still comparatively rare, circumstance of a couple divorcing, reconciling later, and remarrying, there would not be, without more, the requisite extraordinariness.

. In addition, Wayne wrongly insists the trial court's findings supporting extenuating circumstances are insufficient because they are not supported by the record on remand. Wayne incorrectly assumes the trial court's findings on remand can only be supported by the record on remand. Such is clearly not the case where our remand was not for the purpose of adducing evidence, but rather for the trial court to make additional findings in reference to the evidence already of record.