Opinion
Case No. 20010721-CA.
Filed December 5, 2002. (Not For Official Publication)
Appeal from the Third District, Salt Lake Department, The Honorable David S. Young.
Harold G. Christensen and Rodney R. Parker, Salt Lake City, for Appellant.
Clark W. Sessions and T. Mickell Jimenez Rowe, Salt Lake City, for Appellee.
Before Judges Jackson, Bench, and Orme.
MEMORANDUM DECISION
Appellant (Wife) argues that "the trial court erred in failing to accurately construct and account for the marital estate." We disagree. InJensen v. Jensen, 2000 UT App 213 (Jensen I), we stated "[i]n light of the record evidence before us, we cannot say that the trial court clearly erred in determining [the] commingling of marital assets." Id. at ¶ 4. The characterization of property as separate or marital was therefore not before the trial court on remand. Hence, we cannot revisit that issue. See, e.g., Slattery v. Covey Co., Inc., 909 P.2d 925, 928 (Utah Ct.App. 1995) (stating that trial court on remand can only address issues "left open by an appellate decision").
Wife next argues that the "trial court erred in failing to correctly define exceptional circumstances and to explain its application of the principle." The trial court found that "no exceptional circumstances exist which would justify the division of the marital estate between the parties on other than an equal basis." We instructed the trial court to follow the procedure set forth in Burt v. Burt, 799 P.2d 1166, 1172 (Utah Ct.App. 1990), namely, "to first determine which property is separate — removing it from further consideration — and then divide the remaining marital estate equally, unless exceptional circumstances are found." Jensen I, 2000 UT App 213 at ¶ 6 (emphasis added); see Burt, 799 P.2d at 1172. The trial court followed this procedure and found no exceptional circumstances present in this case. Based on our review of the record, we cannot conclude that the trial court erred in finding that there were no exceptional circumstances to warrant an unequal division of the marital estate.
Wife argues that the trial court erred in eliminating its earlier award of alimony. "When reviewing a trial court's determination of alimony . . ., an appellate court reviews [it] for abuse of discretion." Willey v. Willey, 951 P.2d 226, 230 (Utah 1997). Upon remand, the trial court properly considered the relevant statutory factors. See Utah Code Ann. § 30-3-5(7)(a) (Supp. 2002). The trial court specifically mentioned each of the required statutory factors in its second supplemental findings of fact. We conclude that the trial court did not abuse its discretion in changing its earlier alimony award.
Finally, Wife argues that "the trial court erred in ordering [her] to return $125,000 in alimony previously paid." "Alimony determinations are within the sound discretion of the trial court because of its advantaged position to assess evidence and ascertain facts." Willey, 951 P.2d at 230. The trial court initially ordered Husband to pay the mortgage on the Monica Cove home and to pay Wife $4,000 per month "commencing November 1, 1997," the day after trial ended. On remand, the trial court concluded that Wife had no need for alimony based on an analysis of the statutory factors found in section 30-3-5. Subsequently, the trial court ordered Wife to repay Husband the $4,000 per month alimony she had received from November 1, 1997 to July 7, 2000. In light of the trial court's determination that Wife had no need for alimony, the prior alimony payments became a windfall to Wife. Based on our review of the trial court's findings and the record, we conclude that the trial court did not abuse its discretion in ordering a refund of unneeded alimony. See Burnham v. Burnham, 716 P.2d 781, 782 (Utah 1986) (stating that "[t]he trial court in a divorce action is permitted considerable discretion in adjusting the financial and property interests of the parties, and its actions are entitled to a presumption of validity").
We have considered the remaining arguments on appeal and find them to be without merit. See State v. Allen, 839 P.2d 291, 303 (Utah 1992) (permitting appellate courts to decline to analyze and address in writing every issue raised).
Accordingly, we affirm the judgment of the trial court.
WE CONCUR: Norman H. Jackson, Presiding Judge, and Gregory K. Orme, Judge.