In my time as a legal assistant in the family law profession, I have observed many different kinds of client behaviors, some better than others. Those behaviors that cause the warning sirens to go off in our office are not always apparent upon first meeting with a client. It can be two or three weeks of communication before a red flag behavior appears.
One of the worst red flags that I have seen is not telling the whole truth. Clients who spin a yarn that falsely paints them as victims who are down on their luck and being abused by their exes and the system. Usually, this kind of dishonest client is not only being dishonest, but gives as good has he or she got in a mutually dysfunctional relationship. There isn’t much of an argument to be had by accusing your spouse of being an abusive drunk, a pill-popper, a philanderer, etc. when you’re engaged in the same or similar bad behavior. Be honest with your lawyer. He can help you. He can’t magically make all problems disappear, but he can ensure you present the ugly truths about yourself in the most effective ways. Your lawyer can’t help you very much, if at all, however, if you’re not honest with your lawyer. Period.
Another behavior that sets off the warning bells are the clients who focus on how much money and/or assets that they can get out of their former spouse. You are entitled to an equitable distribution of the marital assets. A fair division. But when clients try to leverage the children for money lie about abuse and betrayal and debauchery, that’s not only disgusting but it can backfire.
Finally, the least damning of the red flags but the most common are the clients who ghost their lawyers. Why would you hire an attorney ostensibly to help you, then not cooperate with them? If your lawyer is calling, it is probably important. You need to take the call. You need to return the call. Read your lawyer’s emails. Respond to them. Timely. When you fall asleep at the wheel or just expect your lawyer to do everything, it isn’t your lawyer’s fault when things go awry.
Confer with an attorney in the jurisdiction where you and/or the other parent now reside who has knowledge and experience with registering foreign divorce and child custody orders in the jurisdiction where you and/or the other parent now reside.
Maybruch, C., Weissman, S., & Pirutinsky, S. (2017). Marital outcomes and consideration of divorce among Orthodox Jews after signing a religious prenuptial agreement to facilitate future divorce. Journal of Divorce & Remarriage, 58(4), 276–287. https://doi.org/10.1080/10502556.2017.1301152
Abstract
This study examined marital satisfaction, marital adjustment, and consideration of divorce among Orthodox Jews in North America (N = 2,652). These marital outcomes were compared for individuals who signed or did not sign a religious prenuptial agreement that facilitates a woman’s future ability to receive a religious divorce from her husband. Results indicated a higher level of marital satisfaction among those who signed the religious prenuptial agreement, and no significant difference in marital adjustment or tendency to consider divorce between groups of individuals who signed or did not sign the religious prenuptial agreement. (PsycINFO Database Record (c) 2017 APA, all rights reserved)
This paper did not address the question of whether prenuptial agreements lead to divorce, but, among the other subject it touches, “discusses two major explanations for the paucity of prenuptial agreements: underestimation of the value of prenuptial agreements, especially due to false optimism that marriages will last; and a belief that discussing prenuptial agreements would signal uncertainty about marriage.”
In the event of divorce – statistically, the reality for nearly half the marriages in America – a prenuptial agreement has the potential to save the divorcing couple anguish, arguments, and thousands of dollars. It may represent an exit agreement far closer to their wishes than the court-ordered divorce. A good prenuptial agreement can even exert a positive force on a healthy marriage.
Fear and Loathing in Marriage: The Psychological and Financial Destruction Caused by Prenuptial Author: Anne Cominsky Mentor: Kurt Meyer, Professor of English, Irvine Valley College Historically, prenuptial agreements as a condition of saying “I do” were sought out by the economically stronger partner as financial protection from divorce. Currently, legal experts and financial advisors agree the general use of prenuptial agreements is on the rise. A random poll suggests that over half of the general public view prenuptial agreements favorably.
If you’re thinking about a prenup, or — worse yet — your intended is pushing a prenup on you, you might as well go ahead and just cancel the wedding. There’s an easier way to keep your assets and income separate: it’s called cohabitation. In most states, cohabiting partners are free to walk away from their relationship with their income and assets intact, all without the hassle and expense of a divorce. There’s an easier way to keep your assets and income separate: it’s called cohabitation. But if you’re truly in love, and you wish to share your life, your body, your children and your checkbook with your beloved “till death do you part,” marriage is generally the ticket. Marriage is about establishing a common life together, about putting someone else ahead of yourself, and sharing the things that mean the most to you, including your money. And, paradoxically, if you take this other-centered approach to marriage, you’re not only less likely to divorce, but also to enjoy a happier relationship. My research suggests that couples who embrace a generous orientation toward their marriage, as well as those who take a dim view of divorce, are significantly more likely to be happy in their marriages. A National Center for Family and Marriage Research study finds that couples who share joint bank accounts are less likely to get divorced. In fact, married couples who do not pool their income are 145 percent more likely to end up in divorce court, compared to couples who share a bank account. So, the kind of partners who wish to hold something back from their spouse in a marriage — emotionally, practically and financially — and to look out for No. 1 instead are more likely to end up unhappy and divorced. If that is your aim in marrying, go ahead and get a prenup. But if you wish to experience the best that marriage has to offer, find a partner who is willing to give everything to you, and do the same for them. Your odds of finding wedded bliss will be higher than your peers with prenups. Join Opinion on Facebook and follow updates on twitter.com/roomfordebate .
5 Prenuptial Pitfalls to Consider — Having One May be Bad for Your Marriage | DivorceNet
For what it’s worth, now that you have some research data: in the course of my cursory research I noticed a distinct bias in the articles that claim that prenuptial and postnuptial agreements do not encourage divorce/discourage marriage. I believe that any intellectually honest person would conclude that for the vast majority of young, unmarried people contemplating marriage for the first time and who aren’t celebrities, or rich or in some other exceptional category contemplating marriage, a prenuptial agreement raises red flags and tends to raise doubts as to the other party’s commitment to marriage.
Pro-prenuptial agreement articles gloss over the red flags. They claim prenuptial agreements “”clear the air, “help break the ice about discussing finances”, and “reduce acrimonious litigation in the event of divorce” rather transparently strain credulity to make those arguments stick.
This is a subject that comes up frequently. It comes up frequently not because misappropriating child support is a hard problem to mitigate but because the courts don’t have the will to implement effective mitigation measures.
When one of the factors in determining the child support award is essentially “making sure the less affluent parent (the poorer parent) has enough money to afford the costs of the lifestyle to which the child is accustomed,” this question arises: how is it ensured that the money paid by the child support obligor (the one paying support) to the child support obligee (the child support recipient) is spent on funding “the lifestyle to which the child is accustomed”? An associated question is: what is to stop the child support obligee from spending the funds on the obligee herself/himself?
The answer to both questions is fairly easy to implement:
Audit the child’s needs (rigorously; and we can define needs as “the lifestyle to which the child is accustomed” for this purpose)
Determine the costs of the child’s needs
Award the amount of child support paid based upon the child’s needs
Require the child support obligee to account for (with objectively verifiable proof) the expenditure of the child support funds paid, so that both the child support obligor and the court (and even the child himself/herself) can verify that the child support funds are not being misappropriated.
Utah even has a statutory provision that gives a court the option of requiring the child support obligee to account for the expenditure of child support funds[1], but in 26 years of practice I have yet to see a court order that the child support obligee account.
(1) The court or administrative agency which issues the initial or modified order for child support may, upon the petition of the obligor, order prospectively the obligee to furnish an accounting of amounts provided for the child’s benefit to the obligor, including an accounting or receipts.
(2) The court or administrative agency may prescribe the frequency and the form of the accounting which shall include receipts and an accounting.
(3) The obligor may petition for the accounting only if current on all child support that has been ordered.
When the value of a business that is a marital asset is divided in divorce, the question of the “goodwill value” of the business will usually arise.
Goodwill is defined by Black’s Law Dictionary as “a business’s reputation, patronage, and other intangible assets that are considered when appraising the business, esp. for purchase; the ability to earn income in excess of the income that would be expected from the business viewed as a mere collection of assets.” (Black’s Law Dictionary (11th ed. 2019))
The Utah appellate case of Marroquin v. Marroquin defined institutional or enterprise goodwill as “based on the intangible, but generally marketable, existence in a business of established relations with employees, customers and suppliers, and may include factors such as a business location, its name recognition and its business reputation” (¶15, 440 P.3d 757 (Utah App. 2019)). In contrast, “Personal goodwill is based on an individual’s “reputation for competency” and is not subject to distribution upon divorce.” (Id.) This is why, in Marroquin v. Marroquin, where the court determined the only goodwill associated with the husband’s business was that of personal goodwill, the value of such goodwill was not subject to distribution upon divorce of the parties. Consequently, requiring the husband to pay the spouse part of the value ascribed to the personal goodwill would have been inequitable.
In the Utah appellate case of Stonehocker v. Stonehocker (2008 UT App 11, 176 P.3d 476 (Utah Ct. App. 2008)), the value of the husband’s business would be determined independent of any goodwill component where the business was the product of the husband’s reputation, goodwill, and sole efforts, and there could be no good will in a business that was dependent for its existence upon the husband who conducted the enterprise and would vanish were the husband to die, retire or quit work (Id. at ¶ 44).
Most small businesses do not have business or commercial goodwill, but that does not stop many spouses from claiming that business/commercial goodwill exists, that it exists in prodigious quantities, and that the spouse making the claims is entitled to a big ‘ole cash award equal to half of the alleged business/commercial goodwill.
Karra J. Porter and Kristen C. Kiburtz, Attorneys for Appellant
Julie J. Nelson, Attorney for Appellee
JUDGE AMY J. OLIVER authored this Opinion, in which JUDGES
MICHELE M. CHRISTIANSEN FORSTER and RYAN D. TENNEY
concurred.
OLIVER, Judge:
¶1 Richard Lee Clark appeals from the district court’s decision following a two-day divorce trial. Clark challenges several aspects of the court’s ruling, including a discovery sanction for his failure to timely disclose his trial exhibits under rule 26 of the Utah Rules of Civil Procedure; findings relating to his claim that his ex-wife, Susan Jeanne Clark, dissipated the marital estate; and the court’s division of the marital property. We affirm the district court’s ruling with the exception of one aspect of the district court’s marital property determination, which we vacate and remand for additional findings.
BACKGROUND
¶2 Richard and Susan[1] married in 2002, when Richard was in his sixties and Susan was in her fifties. Richard was retired from military service and from employment as an attorney with the Department of Justice. Susan owned a wallpaper business when she met Richard but quit working shortly after they married. For the next six years, Richard and Susan lived off Richard’s retirement income from both the Army and the Department of Justice.
¶3 In 2008, Richard came out of retirement to work for a government contractor in Afghanistan, where he lived for thirty-eight months. During that time, Richard’s retirement and employment income of $814,627 was deposited into a joint account that Susan controlled. Richard returned home to find “probably about $100,000 . . . had been saved” in the joint bank account—much less than he expected—yet he said nothing to Susan at that time.
¶4 Three years after his return, Richard moved into the basement of the marital home. The following year, in 2016, Susan transferred approximately $78,000 from their joint account into her personal account, prompting Richard to confront her about what he viewed as missing money from his time in Afghanistan. Two years later, in 2018, Susan filed for divorce. Shortly afterward, Richard purchased a Harley-Davidson motorcycle with financing, which he paid off in 2020.
¶5 At the time of their divorce, Richard and Susan owned two real properties—a condo in Norfolk, Virginia (Mooring Drive), and a home in Kamas, Utah (Ross Creek). Richard had purchased Mooring Drive before the marriage for approximately $205,000. In 2003, Richard added Susan to the title of Mooring Drive, which allowed her to vote at the condominium association’s meetings and to join the board. The following year, Richard and Susan used equity loans on Mooring Drive to finance the purchase and construction of Ross Creek. From 2009—when Susan moved to Utah and Richard was in Afghanistan—until June 2019, Richard rented Mooring Drive out to others and the revenues were deposited into his separate account that was designated to pay for the property’s expenses.
¶6 During their marriage, the parties took out an equity loan on Ross Creek that matured, along with one of the equity loans from Mooring Drive, in 2019. With the divorce still pending, Susan agreed to refinance Ross Creek’s mortgage to pay off the two equity loans that were due, but only if Richard would stipulate that Mooring Drive and Ross Creek were marital property and were subject to equitable division in their pending divorce. Richard agreed, and the parties stipulated that “the Ross Creek and Mooring Drive properties shall remain marital property and shall be subject to equitable division in the parties’ divorce notwithstanding that the Ross Creek home and Mooring Drive property will no longer be jointly titled.”
¶7 In April 2019, the Mooring Drive tenants’ lease expired. Richard decided he could only offer the tenants a month-to-month lease until his divorce was over. When the tenants declined to renew and moved out in June, Richard withdrew $30,000 from the joint bank account, claiming that he needed the funds to cover Mooring Drive’s expenses. After a hearing, the court entered temporary orders in December 2019, permitting Richard to access equity in Ross Creek to pay off debt on Mooring Drive but denying his “request for financial relief based on the loss of rental income because [Richard] ha[d] not made any attempt to secure new renters.”
¶8 Trial was originally scheduled for June 2020, but when the COVID-19 pandemic hit and courts were required to hold bench trials virtually, Richard declined to proceed with a virtual trial, and it was continued without a date. In February 2021, the court held a pretrial scheduling conference and rescheduled the trial for May 2021. The court’s pretrial order stated the parties must produce pretrial disclosures on or before April 26, 2021, pursuant to rule 26(a)(5)(B) of the Utah Rules of Civil Procedure.
¶9 Richard missed the deadline. A week after it passed, he requested a continuance to hire trial counsel. Richard had been representing himself as a pro se litigant despite being eighty-four years old and not having practiced law since 1988. According to Richard, health issues arose that made him “no longer physically and mentally capable of representing” himself. The court granted the motion, rescheduling the trial for June. The new deadline for pretrial disclosures became May 24, but Richard did not submit his pretrial disclosures until June 10—eleven days before trial.
¶10 The two-day trial began with Susan’s objection to Richard’s untimely pretrial disclosures. Susan contended that Richard had “ample opportunity” to produce his pretrial disclosures given the multiple continuances of the trial. In response, Richard claimed his failure to meet the disclosure deadline was harmless because he had previously produced as discovery responses the 339 pages of financial documents—including check registers, paystubs from 2008 to 2009, and bank account information from 2011 to 2012— that he sought to admit as exhibits 2 through 8. Yet Richard did not file certificates of service for those responses, and neither party’s counsel could confirm whether Richard had previously sent the documents in exhibits 2 through 8 to Susan, leaving the district court with only Richard’s testimony to support the claim that he had previously disclosed the exhibits. The district court sustained Susan’s objection as to exhibits 2 through 8, excluding them from trial.
¶11 Both Susan and Richard testified at trial. Susan testified Richard had transferred $30,000 from their joint account to his personal account in June 2019 and contended she was entitled to half of that amount. Susan also testified about her exhibits that provided recent balances in her bank and retirement accounts.
¶12 On cross-examination, Susan admitted she had not looked for work and was unemployed despite the court’s urging in 2020 for her to seek employment. Richard then peppered Susan about numerous expenditures during his time in Afghanistan, to which Susan replied that it “was a number of years ago” and she “ha[d] no recollection at all” of the transactions. Susan did state, however, that when Richard left for Afghanistan, she recalled they “had very large credit card balances” that Richard instructed her “to start paying off” while he was away.
¶13 First testifying as Susan’s witness, Richard answered questions about some of the marital property. He testified about a recent appraisal of Mooring Drive that valued it at $390,000, his three life insurance policies that all list Susan as the beneficiary, and his purchase of the Harley-Davidson in May 2019. Susan then introduced a pleading Richard had filed with the court in November 2019 that stated, in relevant part, he had “owned three motorcycles, selling the last one when [he] moved to Norfolk,” but he has “never ridden a Harley-Davidson.” Richard replied that he had “misstated the fact,” both in that pleading and at a hearing the same month when he told the court he did not own a Harley-Davidson. Richard testified he should receive three-fourths of the equity in Mooring Drive because he purchased it before the marriage. Unable to provide a figure for what the property was worth when he married Susan, Richard claimed that “the[] prices have gone up and gone down a great deal” since their marriage, but his best guess was that Mooring Drive appreciated from $205,000 to $350,000 between 2000 and 2002. Richard continued to do some impromptu math on the stand to clarify how much equity he felt he was owed, asserting that since Mooring Drive was recently appraised at $390,000 and had been worth $350,000 in 2002—by his best guess—there is $40,000 of equity for them to divide, but then he admitted such valuation “is something I’m just not knowledgeable about.”
¶14 As his own witness, Richard testified about Susan’s alleged dissipation during his time in Afghanistan. Richard’s excluded exhibits went to the issue of dissipation, so without the financial documents from that period, Richard sought to prove Susan “dissipated money while [he] was in Afghanistan” through his testimony about his earnings and typical expenses during that time frame. Using the excluded exhibits to refresh his recollection, Richard estimated their monthly expenses before he left were approximately $10,000 to $11,000. Richard also challenged Susan’s testimony about credit card balances, claiming that “there weren’t any large credit card balances before [he] left.”
¶15 At the conclusion of trial, the district court asked both parties to submit proposed findings of fact and conclusions of law in lieu of closing arguments. After issuing an oral ruling, the district court memorialized its decision in written findings of fact and conclusions of law. The court found that Richard’s “testimony was insufficient to establish his [dissipation] claim” and that Richard had “failed to meet his burden of demonstrating dissipation.” The court also found “problems with the credibility of both parties,” specifically finding that Susan’s “credibility was lacking with regards to the dissipation issue” and Richard’s “credibility was lacking with regards to his motorcycle purchase.” Susan was awarded Ross Creek’s equity, and Richard was awarded Mooring Drive’s. The court awarded Susan $2,500 per month in alimony and an offset of $43,474 (from Richard’s purchase of the Harley-Davidson and his $30,000 withdrawal from the joint account) “to achieve an equitable division of the estate.” The court found Richard “withdrew $30,000 from the joint account without [Susan’s] knowledge or consent and deposited it into his own personal account,” but it made no findings as to how Richard spent the $30,000.
ISSUES AND STANDARDS OF REVIEW
¶16 Richard raises three main issues for our review. First, Richard challenges the district court’s exclusion of his exhibits for his failure to comply with rule 26(a)(5) of the Utah Rules of Civil Procedure. A district court “has broad discretion regarding the imposition of discovery sanctions,” and when we apply “the abuse of discretion standard to the district court’s imposition of a particular sanction, we give the district court a great deal of latitude.” Bodell Constr. Co. v. Robbins, 2009 UT 52, ¶ 35, 215 P.3d 933 (cleaned up).
¶17 Second, Richard contends the district court erred in its application of the burden of proof on Richard’s dissipation claim. A district court’s “allocation of the burden of proof is . . . a question of law that we review for correctness.” Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶ 20, 435 P.3d 179.
¶18 Finally, Richard challenges the district court’s division of the property, including the court’s finding that the marital estate included Mooring Drive and the Harley-Davidson, and its decision to deduct from the marital estate the $30,000 Richard withdrew from the parties’ joint account. A district court “has considerable discretion considering property division in a divorce proceeding, thus its actions enjoy a presumption of validity,” and “we will disturb the district court’s division only if there is a misunderstanding or misapplication of the law indicating an abuse of discretion.” Beckham v. Beckham, 2022 UT App 65, ¶ 6, 511 P.3d 1253 (cleaned up).
ANALYSIS
I. Pretrial Disclosures
¶19 Richard asserts the district court abused its discretion in excluding his exhibits 2 through 8 for failure to comply with rule 26(a)(5) of the Utah Rules of Civil Procedure because he “produced the documents that comprised the exhibits” during discovery and any “technical non-compliance with that rule” was “harmless.” We disagree.
¶20 Rule 26 governs “disclosure and discovery” in civil matters and requires parties to provide “a copy of each exhibit, including charts, summaries, and demonstrative exhibits, unless solely for impeachment, separately identifying those which the party will offer and those which the party may offer . . . . at least 28 days before trial.” Utah R. Civ. P. 26(a)(5). A party who fails to timely disclose exhibits “may not use the undisclosed witness, document, or material at . . . trial unless the failure is harmless or the party shows good cause for the failure.” Id. R. 26(d)(4). A district court “has broad discretion in selecting and imposing sanctions for discovery violations under rule 26,” and “appellate courts may not interfere with such discretion unless there is either an erroneous conclusion of law or no evidentiary basis for the district court’s ruling.” Wallace v. Niels Fugal Sons Co., 2022 UT App 111, ¶ 26, 518 P.3d 184 (cleaned up), cert. denied, 525 P.3d 1267 (Utah 2023).
¶21 Richard does not dispute that he failed to timely disclose exhibits 2 through 8. Instead, Richard argues he produced the documents in those exhibits to Susan in earlier discovery responses, so his failure to timely file pretrial disclosures was harmless, and he further argues that it was Susan’s burden to prove she had not received them. In response, Susan asserts it was Richard’s burden, not hers, to prove that he produced the documents earlier in discovery, and the failure to file his pretrial disclosures pursuant to rule 26(a)(5) was not harmless. We agree with Susan on both fronts.
¶22 First, “the burden to demonstrate harmlessness or good cause is clearly on the party seeking relief from disclosure requirements.” Dierl v. Birkin, 2023 UT App 6, ¶ 32, 525 P.3d 127 (cleaned up), cert. denied, 527 P.3d 1107 (Utah 2023). Second, Richard failed to carry his burden of demonstrating harmlessness. Although Richard “assured [his counsel] that he [had] produced records related to this 2008-to-2012 timeframe,” he did not file the required certificates of service. See Utah R. Civ. P. 26(f) (requiring a party to file “the certificate of service stating that the disclosure, request for discovery, or response has been served on the other parties and the date of service”). Thus, Richard failed to prove that the documents had previously been produced.
¶23 But even if he had proved prior production, excusing pretrial disclosures if the documents were produced earlier in discovery would “eviscerate[] the rule that explicitly requires parties to” serve a copy of the documents they intend to use “in their case-in-chief at trial.” Johansen v. Johansen, 2021 UT App 130, ¶¶ 19, 26, 504 P.3d 152 (rejecting argument to follow the spirit of rule 26 rather than “the plain language of rule 26” regarding pretrial disclosures); see also Utah R. Civ. P. 26(a)(5)(A)(iv) (requiring pretrial disclosure of “each exhibit” the party will or may offer at trial). And expecting a party to sort through hundreds, if not thousands, of pages of documents that were produced earlier by the other side during discovery and then expecting the party to predict which ones the opposing party might seek to admit at trial would be harmful and would violate the intent of rule 26.
¶24 Ultimately, “a court’s determination with respect to harmlessness . . . . is a discretionary call,” and our review of it “is necessarily deferential.” Johansen, 2021 UT App 130, ¶ 11 (cleaned up). Thus, the district court was well within its “broad discretion” to exclude Richard’s exhibits 2 through 8 under these circumstances. See Wallace, 2022 UT App 111, ¶ 26 (cleaned up).
II. Dissipation
¶25 Richard claims the district court erred in finding that he failed to meet the burden of proof on his dissipation claim. We disagree.
¶26 “The marital estate is generally valued at the time of the divorce decree or trial.” Goggin v. Goggin, 2013 UT 16, ¶ 49, 299 P.3d 1079 (cleaned up). “But where one party has dissipated an asset,” the “trial court may, in the exercise of its equitable powers,” “hold one party accountable to the other for the dissipation.” Id. (cleaned up). A court’s inquiry into a dissipation claim may consider “a number of factors,” such as “(1) how the money was spent, including whether funds were used to pay legitimate marital expenses or individual expenses; (2) the parties’ historical practices; (3) the magnitude of any depletion; (4) the timing of the challenged actions in relation to the separation and divorce; and (5) any obstructive efforts that hinder the valuation of the assets.” Wadsworth v. Wadsworth, 2022 UT App 28, ¶ 69, 507 P.3d 385 (cleaned up), cert. denied, 525 P.3d 1259 (Utah 2022).
¶27 The burden of proof for dissipation initially falls on the party alleging it. See Parker v. Parker, 2000 UT App 30, ¶ 15, 996 P.2d 565 (stating that a party seeking to assert dissipation must make an “initial showing of apparent dissipation”). The district court correctly concluded that Richard bore the “burden of demonstrating dissipation.” To meet the “initial showing of apparent dissipation,” the party alleging dissipation must first show evidence of dissipation. Id. ¶¶ 13, 15. Only after “present[ing] the trial court with evidence tending to show that [Susan] had dissipated marital assets” does the burden shift to Susan “to show that the funds were not dissipated, but were used for some legitimate marital purpose.” Id. ¶ 13.
¶28 Richard’s documentary evidence on this issue had been excluded by the court, so the only evidence he presented was his testimony in 2021 that his income while in Afghanistan from 2008 to 2012 exceeded the estimated historical marital expenses from before 2008, some thirteen years earlier. Richard asserts that his testimony alone should suffice for an initial showing of dissipation. In Parker v. Parker, 2000 UT App 30, ¶ 15, 996 P.2d 565, the husband “presented the trial court with evidence” that detailed how the wife had dissipated marital assets—exact beginning and ending balances for eight bank accounts, the marital expenses during the time in question, and specific checks the wife wrote to herself—thus shifting the burden to the wife. Id. ¶ 13. But Richard, like the wife in Parker, only “testified in conclusory and cryptic terms,” and thus “wholly failed to meet [his] burden.” Id. ¶ 14.
¶29 Therefore, the district court was well within its discretion to decide that Richard’s uncorroborated testimony about Susan’s spending that occurred many years before either party contemplated divorce[2] was insufficient evidence to meet his initial burden of proving dissipation. Accordingly, the district court did not err in its finding that Richard failed to meet his burden of proof on the dissipation claim.
III. Marital Property
¶30 Richard presents three challenges to the district court’s division of the marital property. First, Richard asserts he is entitled to his premarital contribution to Mooring Drive. Second, he alleges the Harley-Davidson he purchased during the pendency of the divorce is his separate property. Third, Richard claims the court should not have deducted from the marital estate the $30,000 that he withdrew from the joint account in June 2019.
We affirm the district court’s decision on Richard’s first two challenges and vacate the decision on the third, remanding the matter for additional findings.
A. Mooring Drive
¶31 Although the district court awarded Richard the equity in Mooring Drive when it divided the marital estate, it did not also award Richard any premarital equity in the property for three reasons. First, it found that Richard “formally stipulated that Ross Creek and Mooring Drive were marital property subject to division in this divorce action.” Second, it found that “through a series of refinances, [Richard] transferred equity from Ross Creek to Mooring Drive, and paid expenses associated with both properties with marital funds.” Third, it found that Richard “formally conveyed the property to himself and [Susan] in 2003” when he added Susan’s name to the title. Because we affirm the district court’s decision not to award Richard any premarital equity on the basis of the parties’ stipulation, we do not address the other two reasons the district court relied upon.
¶32 Richard and Susan stipulated that “the Ross Creek and Mooring Drive properties shall remain marital property and shall be subject to equitable division in the parties’ divorce, notwithstanding that the Ross Creek home and Mooring Drive property will no longer be jointly titled.” Richard now claims that despite the language of the stipulation, he “never agreed that he should not be compensated for his premarital and separate contributions to Mooring Drive before the property became marital.” Furthermore, Richard argues, “nowhere in the stipulation did he agree that he was waiving his premarital equity in that property.”
¶33 Richard’s argument is flawed. “Parties to a divorce are bound by the terms of their stipulated agreement.” McQuarrie v. McQuarrie, 2021 UT 22, ¶ 18, 496 P.3d 44. And according to the “ordinary contract principles” that govern “contracts between spouses,” see Ashby v. Ashby, 2010 UT 7, ¶ 21, 227 P.3d 246 (cleaned up), “if the language within the four corners of the contract is unambiguous, the parties’ intentions are determined from the plain meaning of the contractual language,” Green River Canal Co. v. Thayn, 2003 UT 50, ¶ 17, 84 P.3d 1134 (cleaned up). See also Mind & Motion Utah Invs., LLC v. Celtic Bank Corp., 2016 UT 6, ¶ 24, 367 P.3d 994 (holding that “the best indication of the parties’ intent is the ordinary meaning of the contract’s terms”); Ocean 18 LLC v. Overage Refund Specialists LLC (In re Excess Proceeds from the Foreclosure of 1107 Snowberry St.), 2020 UT App 54, ¶ 22, 474 P.3d 481 (holding that where the “contract is facially unambiguous, the parties’ intentions are determined from the plain meaning of the contractual language . . . without resort to parol evidence” (cleaned up)).
¶34 Richard essentially argues that the district court erred when it refused to go beyond the stipulation’s language and infer his intention from what he omitted. But the district court was correct when it interpreted the parties’ intentions by what the plain language of the stipulation does say and not by what it does not. Therefore, the district court did not abuse its discretion when it abided by the parties’ stipulation and included Mooring Drive as marital property, “subject to equitable division.”
B. The Harley-Davidson
¶35 “Prior to the entry of a divorce decree, all property acquired by parties to a marriage is marital property, owned equally by each party.” Dahl v. Dahl, 2015 UT 79, ¶ 126, 456 P.3d 276. Thus, the presumption is that property acquired during the pendency of a divorce is marital, not separate. Richard failed to rebut this presumption regarding the Harley-Davidson motorcycle he purchased because he failed to present evidence that he used separate funds.
¶36 Richard argued that he purchased the Harley-Davidson from separate, rather than marital, funds in his proposed findings of fact and conclusions of law.[3] To be clear, Richard does not assert that the Harley-Davidson is separate property because he purchased it after the parties separated or after Susan filed for divorce. Instead, he argues the only funds available to him to purchase the motorcycle came from his “separate premarital retirement income.” Richard’s argument fails for two reasons. First, Richard did not present evidence to support his argument that the funds he used to purchase the motorcycle came from separate, not marital, funds. Instead, Richard essentially places his burden on the district court by asserting, on appeal, that “[t]here was no marital account identified by the district court from which [Richard] could have made that purchase.” But Richard, not the court, bears the burden of identifying where the funds came from that he used to purchase the motorcycle.
¶37 Second, the district court found credibility problems with Richard’s testimony about the Harley-Davidson, concluding that Richard’s “credibility was lacking with regards to his motorcycle purchase.”[4] A district court “is in the best position to judge the credibility of witnesses and is free to disbelieve their testimony” or “disregard such testimony if it finds the evidence self-serving and not credible.” Ouk v. Ouk, 2015 UT App 104, ¶ 14, 348 P.3d 751 (cleaned up).
¶38 In sum, as “property acquired during [the] marriage,” the Harley-Davidson is presumptively “marital property subject to equitable distribution.” Dahl, 2015 UT 79, ¶ 26. Richard bore the burden of proof to rebut the presumption that the funds he used to purchase the Harley-Davidson were not marital, and he presented no credible evidence to the district court to support that position. Thus, the district court did not abuse its discretion by including the motorcycle in the marital estate.
C. $30,000 Offset
¶39 Finally, Richard challenges the district court’s decision to include in the marital estate the $30,000 he withdrew from the joint account. The district court agreed with Susan that because Richard had made a unilateral withdrawal from the joint account during the pendency of the divorce, he should be held accountable for that withdrawal. Richard, on the other hand, claims he used the money for marital expenses, paying costs associated with Mooring Drive. Susan argues the money could also have been spent on personal items including travel and motorcycle payments and accessories. “How the money was spent, including whether [the] funds were used to pay legitimate marital expenses or individual expenses,” Wadsworth v. Wadsworth, 2022 UT App 28, ¶ 69, 507 P.3d 385 (cleaned up), cert. denied, 525 P.3d 1259 (Utah 2022), is a critical question that needs to be resolved.
¶40 Divorce cases often require district courts to make numerous findings of fact. And generally speaking, “for findings of fact to be adequate, they must show that the court’s judgment or decree follows logically from, and is supported by, the evidence” and such findings “should be sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached.” Armed Forces Ins. Exch. v. Harrison, 2003 UT 14, ¶ 28, 70 P.3d 35 (cleaned up). Moreover, when it comes to the “unequal division of marital property,” a district court must “memorialize[] in . . . detailed findings the exceptional circumstances supporting the distribution.” Bradford v. Bradford, 1999 UT App 373, ¶ 27, 993 P.2d 887 (cleaned up). “Without adequate findings detailing why [one spouse] should be entitled to such an unequal split of the marital estate, we cannot affirm the court’s award.” Fischer v. Fischer, 2021 UT App 145, ¶ 29, 505 P.3d 56; see, e.g., Rothwell v. Rothwell, 2023 UT App 50, ¶ 57, 531 P.3d 225 (concluding that “we simply do not have enough information” to rule on whether the funds were marital or separate, “let alone to conclude that the district court
. . . erred”).
¶41 We face the same dilemma here. The district court made no findings as to how Richard spent the $30,000. The written ruling merely states, “In June 2019, [Richard] withdrew $30,000 from the joint account without [Susan’s] knowledge or consent and deposited it into his own personal account.” “We will not imply any missing finding where there is a matrix of possible factual findings and we cannot ascertain the trial court’s actual findings.” Hall v. Hall, 858 P.2d 1018, 1025–26 (Utah Ct. App. 1993). Without “adequate findings” on whether Richard used the funds for marital expenses or not, “we cannot affirm,” nor properly review, the court’s decision to offset the $30,000 against Richard in its division of the marital estate. See Fischer, 2021 UT App 145, ¶ 29. Therefore, we vacate this portion of the decision and remand the matter to the district court for it to enter findings on how the funds were spent.
CONCLUSION
¶42 The district court did not abuse its discretion when it excluded Richard’s exhibits for failure to comply with rule 26(a)(5) of the Utah Rules of Civil Procedure. The district court also did not err in its conclusion that Richard failed to meet the burden of proof for his dissipation claim nor did it abuse its discretion in how it divided the marital estate with respect to Mooring Drive and the Harley-Davidson. We vacate the district court’s decision to offset the $30,000 against Richard when it divided the marital estate and remand the matter for the district court to enter additional findings and to alter its conclusion as may be necessary.
[1] Because the parties share the same surname, we refer to them by their first names, with no disrespect intended by the apparent informality.
[2] Susan invites us to join some other states in drawing a bright-line rule concerning the timing of a dissipation claim and limit pre-separation dissipation claims to those occurring (1) in contemplation of divorce or separation or (2) when the marriage is in serious jeopardy or undergoing an irretrievable breakdown. Under our caselaw, the district court is empowered to consider the “timing of the challenged actions in relation to the separation and divorce” as one of several factors when determining “whether a party should be held accountable for the dissipation of marital assets.” Marroquin v. Marroquin, 2019 UT App 38, ¶ 33, 440 P.3d 757 (cleaned up). We see no need to alter this approach. Assessing timing as one factor among many provides the greatest flexibility to the district court to consider all the circumstances in a particular case, and we believe the district court is in the best position to evaluate the importance of such evidence on a case-by-case basis.
[3] Because the district court directed the parties to submit proposed findings of fact and conclusions of law in lieu of closing arguments, Richard’s argument was preserved for our review.
[4] Indeed, in its oral ruling, the court stated that Richard “lied to the Court about the purchase of the motorcycle.”
Because divorce is not about a spouse (man or woman) getting “half of everything”.
Depending upon whether a state is a “community property” state or an “equitable distribution” state, here is how property is divided between spouses in a divorce:
A community-property state is state in which spouses hold property that is acquired during marriage (other than property acquired by one spouse by inheritance, devise, or gift) as community property. Otherwise stated, all property that is acquired during the marriage by either spouse (other than property acquired by one spouse by inheritance, devise, or gift) or by both spouses together is jointly and equally owned and will be presumed to be divided in divorce equally between the divorcing spouses. Nine states are community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.
An equitable distribution state seeks to divide property in divorce in a fair, but not necessarily equal, manner. An equitable property state court can divide property between the spouses regardless of who holds title to the property. The courts consider many factors in awarding property, including (but not limited to) a spouse’s monetary contributions, nonmonetary assistance to a spouse’s career or earning potential, the efforts of each spouse during the marriage, the length of the marriage, whether the property was acquired before or after marriage, and whether the property acquired by one spouse by inheritance, devise, or gift. The court may take into account the relative earning capacity of the spouses and the fault of either spouse (See Black’s Law Dictionary, 11th ed.). Equitable distribution is applied in the non-community property states.
So, does a spouse “get half of everything” in divorce? Possibly, but not always, and now you know why.
This is a great question. Thank you for asking it. It’s a question that arises frequently in divorce situations. And you’re likely not going to like the answer.
It could go either way.
There can be many other factors that the court might need to consider to ensure that its decision is a truly equitable one, but generally speaking:
It is certainly possible that the court would find fault with your wife for residing alone in the marital home without paying at least half of the mortgage payments during that period and order her to reimburse you for the 9 months you paid the mortgage when she refused to do so. Indeed, odds are that the court would take this position.
But it is possible for the court to rule that your wife owes you nothing, especially if she is unemployed due to being a full-time homemaker/mother or employed but earns substantially less than you do. In other words, the court can take a “who is in the best position financially to absorb this cost?” approach.
Cassie J. Medura and Jarrod H. Jennings, Attorneys for Appellant
Douglas B. Thayer and Mark R. Nelson, Attorneys for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN D. TENNEY concurred.
ORME, Judge:
¶1 Thomas E. Mower and Lidia V. Mower stipulated to a bifurcated divorce in which the district court dissolved their marriage but reserved for trial all other issues, which were the subject of contentious litigation. Thomas died after the trial concluded but shortly before the court issued its ruling that would have resolved all but one issue. As a result of Thomas’s death, the court held that it no longer had jurisdiction over the divorce action and closed the case, indicating that Lidia could pursue any surviving claims in probate court against Thomas’s estate.[1]
¶2 On appeal, Lidia argues that the court erroneously concluded that the unresolved claims in the divorce action abated on Thomas’s death. Thomas’s son, Thomas W. Mower (Thomas Jr.), in his capacity as special administrator of the Estate of Thomas E. Mower, by special appearance represents his late father’s interests on appeal. See generally Utah R. App. P. 38(a), (c). We hold that under the facts of this case, Thomas’s death did not deprive the court of jurisdiction to resolve most of the unresolved claims. Accordingly, we reverse and remand.
BACKGROUND
¶3 Thomas and Lidia married in 2001. Lidia initiated divorce proceedings in 2012. The ensuing litigation was very contentious and involved complex issues including grounds for divorce, a request for a retroactive increase in alimony,[2] custody of and parent-time with their child born during the marriage, child support, the potential equitable division of a large estate that was arguably “worth upwards of $150,000,000,”[3] and attorney fees.
¶4 In May 2013, on the parties’ stipulation, the district court entered a bifurcated decree of divorce, dissolving the parties’ marriage but reserving all other issues for trial. The court ruled that it would “value the estate as of the date this divorce decree enters rather than at the day of trial” and that “[a]ll other issues of dispute will remain open for further resolution by the Court.” Following entry of the bifurcated divorce decree, both parties remarried.
¶5 Four and a half years later, the bench trial in this case, which “included voluminous exhibits and witness testimony,” was held over the course of sixteen days between November 2017 and December 2018. Although the matter came under advisement awaiting a final ruling in January 2020, the district court “held status conferences to work through issues as they arose,” with the most recent one being held in July 2020.
¶6 Thomas passed away on August 2, 2020. The following day, the district court issued a ruling stating it would close the divorce action in twenty days unless it received a valid objection and a supporting memorandum. Lidia objected, filing a Motion for Entry of Final Property Division and a Rule 25 Motion to Substitute Party. Regarding the latter motion, Lidia requested that “the personal representative or other appropriate party” be substituted in the divorce action “to allow the Court to issue a final ruling regarding property settlement and all outstanding financial issues in this case.” See generally Utah R. Civ. P. 25(a)(1) (“If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties.”). Thomas’s counsel opposed Lidia’s objection and motions.[4]
¶7 In February 2021, following argument on the issues, the court overruled Lidia’s objection and denied her motions. The court first stated that shortly before Thomas’s death, it had completed “its findings of fact and was prepared to issue a ruling reserving only a single outstanding issue that [it] intended to invite the parties to address via supplemental briefing.” Despite this, following a lengthy discussion of Porenta v. Porenta, 2017 UT 78, 416 P.3d 487, the court held that its prior orders regarding child support, parent-time, and custody abated upon Thomas’s death and that Lidia, as the surviving party in a bifurcated divorce, was required “to pursue unresolved equitable claims to marital property before a probate court.” A few months later, the court issued a Final Order, stating, “Due to the untimely death of [Thomas], this court no longer has jurisdiction over this matter and this matter is closed.” ¶8 Lidia appeals.
ISSUE AND STANDARD OF REVIEW
¶9 Lidia argues that the court erred in closing the divorce action on the ground that Thomas’s death caused it to lose jurisdiction.[5] “We review a court’s determination of jurisdiction for correctness, granting no deference to the lower court.” In re S.W., 2017 UT 37, ¶ 7, 424 P.3d 7.
ANALYSIS
¶10 In concluding that Thomas’s death caused it to lose jurisdiction over the divorce action, the district court relied heavily on our Supreme Court’s opinion in Porenta v. Porenta, 2017 UT 78, 416 P.3d 487. In that case, during the pendency of a divorce action, the husband executed a quitclaim deed transferring his interest in the marital home to his mother in an effort to prevent the home from being distributed as part of the marital estate. Id. ¶¶ 2–3. The husband thereafter died, causing the district court to dismiss the divorce case for lack of jurisdiction. Id. ¶ 5. The wife then sued the mother, seeking to set aside the quitclaim deed under the Utah Fraudulent Transfer Act (the UFTA). Id. ¶ 6. The district court in that case ultimately ruled that the husband’s transfer of his interest in the home to his mother was fraudulent under the UFTA. Id. ¶ 8.
¶11 The mother appealed, arguing that the wife’s claim was barred because the UFTA requires an ongoing debtor-creditor relationship at the time a claim under the act is filed, which relationship the husband’s death had extinguished. Id. ¶ 9. Specifically, the mother argued that the wife’s claim against the husband “for the whole of the marital estate, including the right to preserve the joint tenancy” in the marital home, id. ¶ 14 (quotation simplified), became unenforceable when the husband died because one “cannot bring a claim against a dead person” and because “court orders that award a spouse with property abate upon the death of a spouse,” id. ¶ 16. See generally id. ¶ 12 (“The existence of a claim, or right to payment, is at the heart of the debtor-creditor relationship.”); id. ¶ 19 (“A claim for equitable distribution arises when one party in a marriage threatens divorce.”).
¶12 Quoting its prior decision in In re Harper’s Estate, 265 P.2d 1005 (Utah 1954), our Supreme Court reaffirmed that
when the death of one of the parties occurs after the entry of a divorce decree and before the decree is final the decree becomes ineffective to dissolve the marriage, death having terminated that personal relationship. However, the occurrence of death does not abate the action itself and to the extent that property rights are determined by the decree it remains effective and becomes final.
Porenta, 2017 UT 78, ¶ 20 (quotation simplified). See id. ¶ 28 (reaffirming the precedent set forth in In re Harper’s Estate). In other words, the Court held that “[t]he death of a spouse during a divorce proceeding abates the action concerning the dissolution of marriage, but it does not abate the action itself when certain property rights have been determined by the court.”[6]See id. ¶ 26 (quotation simplified). Conversely, “all interlocutory orders that are effective only during litigation,” such as orders restraining the parties from selling property or dissipating the marital estate, “abate upon the dismissal of a divorce case.” Id. ¶ 27. The court noted that this was in line with “the general rule followed in virtually all jurisdictions . . . that, after one of the spouses dies during a divorce proceeding, and during the time an appeal is pending or during the time when an appeal may be taken, a divorce or dissolution action abates with respect to marital status of the parties but does not abate with respect to property interests affected by the decree.” Id. ¶ 20 (quotation simplified).
¶13 Finally, the Court held that “[c]laims that survive the death of a party are typically chargeable against that party’s estate” and cited rule 25(a)(1) of the Utah Rules of Civil Procedure as a means through which to pursue such claims. Id. ¶ 30. See Utah R. Civ. P. 25(a)(1) (“If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties.”). Because the Court presumed that the wife’s “claim for the whole of the marital estate, including the right to preserve the joint tenancy” in the marital home was not extinguished and was still valid,[7] it held that “a debtor-creditor relationship existed between Husband’s estate and Wife at the time Wife filed her UFTA claim.” Id. ¶ 36 (quotation simplified).
¶14 In sum, as relevant to the issue presented in the current appeal, Porenta provides three major takeaways. First, if a spouse dies prior to entry of a final divorce decree, the marriage no longer requires dissolution because death already “terminated that personal relationship.” Id. ¶ 20 (quotation simplified). See 27A C.J.S. Divorce § 194 (2022) (“A cause of action for divorce is purely personal, ends on the death of either spouse, and does not survive for the benefit of a third party.”); 24 Am. Jur. 2d Divorce and Separation § 118 (2022) (“[A] divorce suit abates when one party dies while the suit is pending and before a decree on the merits, because the death terminates the marriage, thus rendering the divorce suit moot as it relates to the parties’ marital status.”). Second, court orders entered prior to the final divorce decree determining the property rights of the parties do not abate on the spouse’s death. See Porenta, 2017 UT 78, ¶ 20. However, any “interlocutory orders that are effective only during litigation abate upon the dismissal of a divorce case.” Id. ¶ 27. See id. ¶ 27 n.13 (“This is not unique to the area of divorce law. Interlocutory orders that expressly expire at the end of litigation do just that, regardless of the type of case or how the litigation finally ends.”). And third, certain unresolved claims or rights arising from a divorce action may still be pursued following the spouse’s death. See id. ¶ 36. See also 24 Am. Jur. 2d Divorce and Separation § 118
(“[G]iven the circumstances presented, a portion of the dissolution action may survive an abatement of the rest of the action.”).
¶15 Regarding the third point, because the issue had not been adequately briefed, the Porenta Court specifically declined to address “[w]hether a claim for equitable distribution or some other property claim survives the death of a spouse during a divorce proceeding,” Porenta,2017 UT 78, ¶ 17, which the Court characterized as “an issue of first impression in Utah,” id. ¶ 28. Put differently, although the Court held that a district court’s orders determining the parties’ property rights do not abate upon a spouse’s death, it declined to determine whether the same was true for unresolved claims for equitable distribution or other property claims. In any event, the case before us is on a different footing, which likewise does not necessitate that we address that specific issue.
¶16 Unlike in Porenta, Thomas died after the district court entered a bifurcated divorce decree dissolving the parties’ marriage but leaving all unresolved issues for a trial that ultimately would not be held for several more years. See generally Utah R. Civ. P. 42(b) (“The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross claim, counterclaim, or third party claim, or of any separate issue or of any number of claims, cross claims, counterclaims, third party claims, or issues.”). Accordingly, because Thomas and Lidia’s marriage had already been dissolved at the time of Thomas’s death, we need not address the effect the death of a spouse has on the underlying claim for equitable distribution of the marital estate in the situation where the parties are still legally married at the time of the death.
¶17 Rather, the issue before us is more straightforward. As previously discussed, the reason a divorce action generally abates upon the death of a party is because the death already “terminated that personal relationship,” Porenta, 2017 UT 78, ¶ 20 (quotation simplified), thereby “rendering the divorce suit moot as it relates to the parties’ marital status,”[8] 24 Am. Jur. 2d Divorce and Separation § 118. But here, the parties stipulated to a bifurcated divorce, and their marriage had been dissolved several years prior to Thomas’s death. Indeed, both Thomas and Lidia had remarried. For that reason, unlike in Porenta, Thomas’s death had no legal effect on the parties’ already dissolved marriage and therefore the ground on which the divorce action discussed in Porenta abated—i.e., mootness—is not present here.
¶18 Utah courts regularly use bifurcation under rule 42(b) of the Utah Rules of Civil Procedure “to allow divorcing spouses to more expeditiously obtain a divorce before embarking upon the sometimes more complex and time-consuming tasks of determining property division and deciding matters of support.” Parker v. Parker, 2000 UT App 30, ¶ 8, 996 P.2d 565. It is uncontested that a district court’s jurisdiction “to enter equitable orders relating to the property belonging to the marital estate” is unaffected by the bifurcation. Porenta, 2017 UT 78, ¶ 19 (quotation simplified). See Utah Code Ann. § 30-3-5(2) (LexisNexis Supp. 2022). Indeed, the Utah Constitution directs, “The district court shall have original jurisdiction in all matters except as limited by this constitution or by statute[.]” Utah Const. art. VIII, § 5. See Utah Code Ann. § 78A-5-102(1) (LexisNexis Supp. 2022) (“Except as otherwise provided by the Utah Constitution or by statute, the district court has original jurisdiction in all matters civil and criminal.”). Furthermore, divorce courts are generally “well
¶19 Here, because the parties’ marriage was already dissolved prior to Thomas’s death, mootness—a jurisdictional bar, see State v. Legg, 2016 UT App 168, ¶ 25, 380 P.3d 360—does not apply to most of the claims at issue.[9] Because no other constitutional or statutory bar to the district court’s jurisdiction exists in the case before us, the district court erred in determining that it lacked jurisdiction over all of the claims that remained at issue and in dismissing the divorce action on that ground. See Estate of Burford v. Burford, 935 P.2d 943, 955 (Colo. 1997) (stating that when one party to a divorce proceeding died following dissolution of the parties’ marriage in a bifurcated divorce, “the dissolution action did not abate, and the district court properly maintained jurisdiction over the marital estate to conduct hearings to resolve financial matters raised in the dissolution proceedings”); Fernandez v. Fernandez, 648 So. 2d 712, 714 (Fla. 1995) (agreeing “that the trial court maintained jurisdiction to enter the final judgment determining the parties’ property rights subsequent to the wife’s death” where the court had dissolved the marriage prior to her death); Barnett v. Barnett, 768 So. 2d 441, 442 (Fla. 2000) (per curiam) (“[T]he death of a party after entry of a written, signed judgment of dissolution but prior to the rendition of a decision on a timely motion for rehearing concerning matters collateral to the adjudication of dissolution did not affect the dissolution decree or divest the court of jurisdiction to decide the remaining issues between the parties.”); 27A C.J.S. Divorce § 194 (“Once a decree in divorce is granted and, thereafter, one of the parties dies, the court can continue with the equitable distribution of marital property.”).
¶20 In cases such as this, in which “a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties.” Utah R. Civ. P. 25(a)(1). See Porenta, 2017 UT 78, ¶ 30 (stating that “[c]laims that survive the death of a party are typically chargeable against that party’s estate” and citing rule 25(a)(1) of the Utah Rules of Civil Procedure as a means through which this may be achieved). But whether to substitute a party remains within the district court’s discretion. See Bradburn v. Alarm Prot. Tech., LLC, 2019 UT 33, ¶ 8, 449 P.3d 20 (“A district court’s substitution ruling is a discretionary one[.]”). Additionally, as Thomas Jr. points out, the district court “has inherent discretionary authority to abstain from exercising jurisdiction where another court has concurrent jurisdiction.” See Kish v. Wright, 562 P.2d 625, 628 (Utah 1977) (“[A]s part of the inherent power that our district courts have, as courts of general jurisdiction, they undoubtedly could refuse to exercise jurisdiction if convinced that it would place an unreasonable burden upon some or all of the parties, or upon the court, to try the case here.”); id. (“[T]he trial court does have concurrent jurisdiction and the power of discretion as to whether or not it will invoke that jurisdiction in a particular case.”). These are all considerations that we leave to the district court’s discretion on remand.[10]
CONCLUSION
¶21 The district court was not required to dismiss the divorce action for lack of jurisdiction following Thomas’s death. We therefore reverse and remand to the district court with instructions to reconsider Lidia’s Motion for Entry of Final Property Distribution and Rule 25 Motion to Substitute Party.
[1] Because the individuals share the same last name, we follow our usual practice of referring to them by their first names, with no disrespect intended by the apparent informality.
[2] Lidia sought a retroactive increase of alimony for 51 months, which represented the span between entry of a temporary order awarding her alimony and her remarriage.
[3] This included the determination of what portion of the large estate constituted marital property and what portion constituted Thomas’s separate property.
[4] Thomas’s counsel continued to represent Thomas’s interests immediately after his death pursuant to Stoddard v. Smith, 2001 UT 47, 27 P.3d 546. See id. ¶ 11 (“An attorney has an ethical obligation to take the necessary steps to protect a deceased client’s interests immediately following the client’s death[.]”).
[5] Thomas Jr. asserts that the district court did not actually rule that it lost jurisdiction over the divorce action. Instead, he suggests that the court simply exercised its “inherent equitable discretion in deciding to leave [Lidia] to pursue those claims in probate court.” But although the court’s initial ruling did not invoke the specific term “jurisdiction,” it nonetheless concluded, with our emphasis, that “Utah precedent requires a surviving party in a bifurcated divorce to pursue unresolved equitable claims to marital property before a probate court.” And in its Final Order, the court clarified, “Due to the untimely death of [Thomas], this court no longer has jurisdiction over this matter and this matter is closed.” Accordingly, the court did, in fact, conclude that it lacked jurisdiction and closed the divorce action on that ground.
Lidia also argues that the district court abused its discretion when it denied her motion to substitute Thomas’s personal representative in the divorce proceeding under rule 25 of the Utah Rules of Civil Procedure. But because the basis of the court’s denial of that motion was its lack of jurisdiction, which ruling we ultimately reverse, we remand to the district court with instructions to reconsider the rule 25 motion on the merits. See generally State v. De La Rosa, 2019 UT App 110, ¶ 4, 445 P.3d 955 (“Trial courts do not have discretion to misapply the law.”) (quotation simplified).
[6] Our Supreme Court also abandoned, as “clearly dictum,” a statement in one of its prior decisions that purported to overrule In re Harper’s Estate. See Porenta v. Porenta, 2017 UT 78, ¶ 22, 416 P.3d 487. Namely, the Court abandoned the statement that “the death of one or both parties to a divorce action during the pendency of the action causes the action itself to abate and the married couple’s status, including their property rights, reverts to what it had been before the action was filed.” Id. (quotation simplified). In other words, the Court rejected “the proposition that the parties’ property interests in the marital estate are frozen in time during the pendency of divorce litigation” and that “[i]f a party dies before the divorce becomes final, . . . property rights in the marital estate . . . are transported back in time to what they held before the divorce case was filed,” id. ¶ 23, which includes the reversal of any transfers of property that might have occurred during the pendency of the divorce action, id. ¶ 23 n.8.
[7] The court employed this presumption because the mother had not carried her burden of persuasion regarding whether property claims raised in a divorce proceeding survive the death of a spouse. See Porenta, 2017 UT 78, ¶¶ 32, 36; infra ¶ 15.
[8] The mootness doctrine “is a constitutional principle limiting our exercise of judicial power under article VIII of the Utah Constitution” and “not a simple matter of judicial convenience.” Transportation All. Bank v. International Confections Co., 2017 UT 55, ¶ 14, 423 P.3d 1171 (quotation simplified). “A case is deemed moot when the requested judicial relief cannot affect the rights of the litigants,” State v. Lane, 2009 UT 35, ¶ 18, 212 P.3d 529 (quotation simplified),thereby rendering a decision “purely advisory,” Transportation All. Bank, 2017 UT 55, ¶ 15 (quotation simplified). established as courts of equity that retain jurisdiction over the parties and subject matter for the purposes equity may demand.” Potts v. Potts, 2018 UT App 169, ¶ 13, 436 P.3d 263 (quotation simplified).
[9] Not all claims raised in the current divorce action concerned property rights. For example, it is undisputed that the claims related to custody, child support, and parent-time abated upon Thomas’s death. On remand, the district court should dismiss any remaining non-property claims that were rendered moot by Thomas’s death.
[10] We note that, sequentially, it may be more prudent for the district court to equitably distribute Lidia and Thomas’s marital estate—which potentially represents only a portion of Thomas’s vast estate that is the subject of the probate proceeding—rather than punting these issues to the probate court, especially where the district court had already prepared a ruling resolving all but one of the issues raised in the years-long divorce action that it superintended.
Brian E. Arnold and Lauren Schultz, Attorneys for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Prior to their marriage, Robben Ann Oldroyd (Ann) and Farrell Lynn Oldroyd (Farrell) built a home on property owned by Ann. Ann paid for the materials and contractors used in the construction of the home, and Farrell contributed his skills and labor to build the specialty log home. When the parties divorced many years later, a dispute arose regarding their relative interests in the home. This is the third time questions relating to their dispute have come before this court. In the current appeal, we are asked to consider whether the district court erred in awarding Farrell a share of Ann’s premarital equity in the home based on its application of the contribution and extraordinary situation exceptions to the separate-property presumption. We conclude that the contribution exception does not apply to premarital contributions and that the extraordinary situation exception does not apply because Farrell had other means of protecting his alleged interest in the home. Accordingly, we reverse the district court’s ruling and remand with instructions for the court to award the disputed equity to Ann.
BACKGROUND
¶2 This is the third time this matter has come before this court. See Oldroyd v. Oldroyd (Oldroyd I), 2017 UT App 45, 397 P.3d 645; Oldroyd v. Oldroyd (Oldroyd II), 2019 UT App 155, 474 P.3d 467. Each appeal has concerned the parties’ home. Ann purchased the land on which the home was built before the parties were married. Oldroyd I, 2017 UT App 45, ¶ 2. While Ann and Farrell were dating, Ann arranged to have the home built. Id. Ann paid for the costs of materials and construction, but Farrell contributed “supervision, labor, work, expertise, and conceptual direction” for the construction. Id. ¶¶ 2, 4 (quotation simplified). Subsequently, the parties married and lived together in the home, but the land and home remained in Ann’s name alone. Id. ¶ 2.
¶3 While both parties agree that Ann should receive a credit for what she spent on the land on which the home was built, the parties disagree about how the remaining equity in the home should be distributed. Farrell argues that all remaining equity should be shared equally between the parties. Ann, on the other hand, maintains that she should receive a credit for both the amount she spent on the land and the amount she spent on construction costs before the parties divide the remaining equity.[1]
¶4 In its original findings of fact and conclusions of law in the parties’ divorce, the district court found that Farrell’s nonmonetary contributions were “roughly equal” to Ann’s financial contributions and that he had therefore acquired “a separate premarital interest in the improvements on the property.” Id. ¶ 4
(quotation simplified). However, we overturned that determination on appeal because the court “did not explain what legal theory gave rise to that equitable interest.” Id. ¶ 8.
¶5 On remand, the district court again determined that Farrell had a premarital interest in the home but this time premised its ruling on a theory of unjust enrichment. Oldroyd II, 2019 UT App 155, ¶ 4. However, we once again reversed the court’s ruling, this time on the basis that Farrell had never asserted an unjust enrichment claim. Id. ¶¶ 7–9.
¶6 In Oldroyd II, we further explained that Farrell’s pleadings did not raise a claim that he had acquired a premarital interest in the home. Rather, Farrell asserted that because he had “exerted hours and money into the home, including trade work,” he “should be awarded a sum certain from [Ann’s] equity in the home for all the work he has completed on the home, and for value of his trade work that he has performed for investment on the marital home.” Id. ¶ 7 (quotation simplified). In other words, Farrell raised not an equitable claim “for a premarital interest in property,” but “a claim for an equitable award of a portion of [Ann’s] premarital asset.” Id. However, because the district court had not considered equitable bases on which Farrell might be entitled to a share of Ann’s premarital interest, we left open the possibility that the court might determine that such an award was appropriate. Id. ¶ 11 & n.3.
¶7 On remand, the district court, for the third time, awarded Farrell a share of equity in the home. This time, the court recognized that the property was Ann’s premarital asset but concluded that Farrell was entitled to a portion of Ann’s premarital equity based on the contribution exception and the extraordinary situation exception. Ann again appeals.
ISSUE AND STANDARD OF REVIEW
¶8 Ann asserts that the district court erred in awarding Farrell a share of her equity in the home because Farrell’s contributions occurred prior to the marriage and the extraordinary situation exception is not applicable. “We generally defer to a trial court’s categorization and equitable distribution of separate property,” Lindsey v. Lindsey, 2017 UT App 38, ¶ 26, 392 P.3d 968 (quotation simplified), so long as the court’s judgment “fall[s] within the spectrum of appropriate resolutions,” id. ¶ 29.
ANALYSIS
¶9 Historically, we have recognized three equitable exceptions that may justify an award of one spouse’s premarital property to the other spouse: (1) the commingling exception, (2) the contribution exception, and (3) the extraordinary situation exception. See Lindsey v. Lindsey, 2017 UT App 38, ¶ 33, 392 P.3d 968. Only the contribution exception and the extraordinary situation exception are at issue in this case.
¶10 As a threshold matter, we note that it is somewhat unclear from the district court’s discussion whether it was relying on the contribution exception, the extraordinary situation exception, or both exceptions in awarding the disputed funds. The parties’ arguments on appeal primarily concern the applicability of the extraordinary situation exception, and they appear to be operating under the assumption that the court’s decision rested on that exception. However, given that the court’s application of the extraordinary situation exception was based on its determination that Farrell’s premarital contributions made it equitable to award him a share of Ann’s premarital property, we think it appropriate to address both exceptions in our analysis.
I. Contribution Exception
¶11 “Under the contribution exception, a spouse’s separate property may be subject to equitable distribution [upon divorce] when the other spouse has by his or her efforts or expense contributed to the enhancement, maintenance, or protection of that property, thereby acquiring an equitable interest in it.” Lindsey v. Lindsey, 2017 UT App 38, ¶ 35, 392 P.3d 968 (quotation simplified). Common examples include a spouse working for the other spouse’s premarital business without taking a salary, see, e.g., Rappleye v. Rappleye, 855 P.2d 260, 263 (Utah Ct. App. 1993), or a couple using marital funds to make improvements to or pay a mortgage on a premarital property, see, e.g., Schaumberg v. Schaumberg, 875 P.2d 598, 601 (Utah Ct. App. 1994). However, as we noted in Oldroyd II, “[p]revious cases addressing equitable division of premarital assets have involved contributions made to those assets during the course of the marriage,” and “Utah courts have not had the opportunity to assess the extent to which one spouse’s premarital contributions to another spouse’s premarital assets may be considered in the context of a divorce court’s equitable division of property.”[2] 2019 UT App 155, ¶ 11 n.3, 474 P.3d 467.
¶12 Having now been presented with the opportunity to consider the applicability of the contribution exception to premarital contributions, we are convinced that it does not apply in this context. Unlike a married person, an unmarried person has no reasonable expectation of any benefit from or entitlement to separate property owned or acquired by their significant other. Here, Farrell chose to assist Ann in building her home without seeking compensation.[3] At that time, even though he may have expected to eventually marry Ann and live in the home with her, he had no guarantee that would happen. “As a general rule, . . . premarital property is viewed as separate property, and equity usually requires that each party retain the separate property he or she brought into the marriage.” Walters v. Walters, 812 P.2d 64, 67 (Utah Ct. App. 1991) (quotation simplified), superseded by statute on other grounds as stated in Whyte v. Blair, 885 P.2d 791 (Utah 1994). Only “where unique circumstances exist” may a trial court “reallocate premarital property as part of a property division incident to divorce.” Id. “Generally, trial courts are . . . required to award premarital property, and appreciation on that property, to the spouse who brought the property into the marriage.” Elman v. Elman, 2002 UT App 83, ¶ 18, 45 P.3d 176.
¶13 Farrell had several options for protecting his interests, which he chose not to take advantage of. First, he could have entered into a contract with Ann requiring her to pay him for his services. Second, he could have negotiated a prenuptial agreement acknowledging his premarital contributions and granting him an interest in the home in case of divorce. Third— though likely an undesirable option given his relationship to Ann—Farrell could have filed a lawsuit bringing a quasi-contract claim, such as unjust enrichment, to obtain compensation for his services. However, the contribution exception is simply not one of the options available where the contributions occurred prior to the parties’ marriage.
II. Extraordinary Situation Exception
¶14 Just as Farrell’s premarital contributions to Ann’s premarital asset cannot support an award to him of Ann’s separate property under the contribution exception, they also cannot support an award under the extraordinary situation exception.
¶15 “The bar for establishing an extraordinary situation is high, traditionally requiring that invasion of a spouse’s separate property is the only way to achieve equity.” Lindsey v. Lindsey, 2017 UT App 38, ¶ 46, 392 P.3d 968 (quotation simplified). “A quintessential extraordinary situation arises when a spouse owns separate property but lacks income to provide alimony.” Id. In that circumstance, “an equitable distribution of the [separate property] would be well within the trial court’s discretion.” Kunzler v. Kunzler, 2008 UT App 263, ¶ 37, 190 P.3d 497 (Billings, J., concurring in part and dissenting in part); see also Burt v. Burt, 799 P.2d 1166, 1169 (Utah Ct. App. 1990) (“The court may award an interest in the inherited property to the non-heir spouse in lieu of alimony.”). The doctrine has also been applied in situations where a person did not contribute directly to their spouse’s premarital asset but their contributions to the marital estate allowed their spouse to enhance their own separate assets rather than the marital estate. SeeHenshaw v. Henshaw, 2012 UT App 56, ¶ 20 & n.7, 271 P.3d 837 (affirming an award of premarital ranch property to a wife, despite the fact that the value of the ranch had depreciated during the marriage, because the wife had borne “the financial burdens of the family in order to allow [the husband] to work almost exclusively on the ranch”); Elman v. Elman, 2002 UT App 83, ¶ 24, 45 P.3d 176 (affirming an award of stock in a premarital business to a wife whose income-earning activities allowed her husband to quit his job and devote time to managing and growing his premarital assets rather than contributing to marital assets). Taking on “domestic burdens” to make possible a spouse’s full-time participation in a premarital business may also be an extraordinary situation where the bulk of the business’s value is developed during the marriage. Savage v. Savage, 658 P.2d 1201, 1204 (Utah 1983).
¶16 But none of those examples reflect the situation we have here. Farrell seeks a portion of Ann’s premarital asset as payment for the work he did on the home prior to the couple’s marriage, not because Ann lacks the resources to pay alimony or enhanced her own separate asset during the marriage in lieu of contributing to the marital estate. And as we discussed above, Farrell had several options to protect his financial interests and to be compensated for his contributions to the home before marrying Ann. The fact that he chose not to employ any of these options does not give rise to the type of inequity that can be addressed only through the extraordinary situation exception. As a general matter, “equitable relief should not be used to assist one in extricating himself from circumstances which he has created.” Utah Coal & Lumber Rest., Inc. v. Outdoor Endeavors Unlimited, 2001 UT 100, ¶ 12, 40 P.3d 581 (quotation simplified). Thus, the district court exceeded its discretion in awarding Farrell a portion of Ann’s premarital asset based on the extraordinary situation exception.
CONCLUSION
¶17 Because we conclude that the contribution exception does not apply to premarital contributions to premarital property, that exception cannot be used to award Farrell a portion of Ann’s premarital interest in the home. Moreover, because Farrell had several options for seeking reimbursement for his premarital efforts, which he declined to exercise, awarding him an interest in the home at this stage of the proceedings is not justified under the extraordinary situation exception. Accordingly, we reverse the court’s award of the disputed portion of the home’s equity and remand with instructions to award the disputed equity to Ann.
When do courts value the marital estate? At time of separation, or at the time the court enters the Decree of Divorce?
This is a question that often causes divorcing people’s heart to sink. I’ll tell you why, but first, let’s answer the question of whether courts value the marital estate in a divorce action: at time of separation, or at the time the court enters the Decree of Divorce?
The first answer to this question is: the court can value the marital estate at any time, if it can articulate a good reason for doing so.
“Generally, the marital estate is valued at the time of the divorce decree or trial.” Jacobsen v. Jacobsen, ¶ 39, 257 Pacific.3d 478 (cleaned up). However, as with alimony, the court has broad discretion to use a different date so long as its decision it supported by “sufficiently detailed findings of fact explaining its deviation from the general rule.” Id.; see also Rayner, 2013 UT App 269, ¶ 19, 316 P.3d 455 (“A trial court has broad discretion to deviate from [the] general rule when circumstances warrant.” (cleaned up)). “As a general rule, the marital estate is valued at the time of the divorce decree,” Rappleye v. Rappleye, 855 P.2d 260, 262 (Utah Ct.App.1993); see also Berger v. Berger, 713 P.2d 695, 697 (Utah 1985), and that “any deviation from the general rule must be supported by sufficiently detailed findings of fact that explain the trial court’s basis for such deviation,” Rappleye, 855 P.2d at 262.
Can a parent with full custody refuse to allow visitation due to unsanitary living conditions?
Good question.
I will answer this question in the context of some applicable law for the jurisdiction where I practice divorce and family law (Utah).
There are many ways to approach this question, but briefly one thing you need to be aware of are the custodial interference laws.
Under the custodial interference laws (76-5-303. Custodial interference), A parent can refuse to comply with a child custody and/or parent time order under certain circumstances:
(a) the action is consented to by the person whose custody or visitation of the child was interfered with; or
(b)
(i) the action is based on a reasonable belief that the action is necessary to protect a child from abuse, including sexual abuse; and
(ii) before engaging in the action, the person reports the person’s intention to engage in the action, and the basis for the belief described in Subsection (6)(b)(i), to the Division of Child and Family Services or law enforcement.
See also 76-5-305. Defenses:
(a) the actor was acting under a reasonable belief that:
(i) the conduct was necessary to protect any person from imminent bodily injury or death; or
(ii) the detention or restraint was authorized by law; or
(b) the alleged victim is younger than 18 years of age or is mentally incompetent, and the actor was acting under a reasonable belief that the custodian, guardian, legal guardian, custodial parent, or person acting in loco parentis to the victim would, if present, have consented to the actor’s conduct.
There is no hard and fast rule you could apply in this situation, of course, but I think it’s reasonable to say that if the living conditions that the other parent’s house were so unsanitary as to pose a serious risk of harm to the child’s life or health, refusing to comply with parent time on that basis might not result in criminal guilt.
Utah Family Law, LC | divorceutah.com | 801-466-9277
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGE
GREGORY K. ORME and JUSTICE DIANA HAGEN concurred.[1]
HARRIS, Judge:
¶1 DiAnn Sheri Fox appeals several aspects of a comprehensive set of rulings issued by the trial court following a two-day divorce trial, including various findings relating to the court’s alimony award, its division of marital debts, and its determination that her ex-husband, Benjamin Davis Fox, was not voluntarily underemployed. For the reasons discussed below, we affirm the court’s orders.
BACKGROUND
¶2 DiAnn and Ben[2] were married in 1997, while Ben was in college and about to start medical school. After completing his training, Ben became a successful neurosurgeon with his practice centered in St. George, Utah. In the marriage’s final years, Ben was making more than $1 million per year, with his monthly pay sometimes as high as $110,000. Ben and DiAnn have six children together, four of whom were minors at the time of trial.
¶3 In keeping with Ben’s impressive income, the parties lived a lavish lifestyle during the marriage. To support that lifestyle, Ben spent a significant amount of time at work—as much as 80 to 100 hours per week. And even when he was not working, Ben was often “on call,” meaning that he had to stay within fifteen minutes of the hospital in case of a medical emergency. Ben took more “on call” shifts than any other physician in his practice. Part of the reason Ben worked such a taxing schedule—even for a neurosurgeon—was because he was qualified as both a neurosurgeon and as a neurointerventionalist, and his services were often in demand. Ben testified that, as a result, he was becoming burnt out and “physically and emotionally exhausted,” and that his work schedule was not sustainable. Due to his schedule, Ben spent comparatively little time with the children, leaving DiAnn largely responsible for their day-to-day care.
¶4 DiAnn has a bachelor’s degree in elementary education and worked full-time as a teacher before the couple’s children were born. While Ben was still in medical school, however, Ben and DiAnn decided that DiAnn would not generally work outside the home but instead would care for their children full-time. At the time of trial, DiAnn was working part-time for the local school district, earning ten dollars per hour.
¶5 In 2018, DiAnn filed for divorce. As part of her petition, DiAnn sought primary physical custody of the children, child support, alimony, equitable division of the marital debts, and equitable division of the marital property. A few months later, the trial court entered a temporary order awarding DiAnn primary physical custody of the children, with Ben allowed parent-time pursuant to Utah Code section 30-3-35.1. The court ordered Ben to pay $12,313 per month in child support, and $21,030 per month in alimony. The parties were also ordered to continue paying $2,500 ($1,250 each) per month to DiAnn’s father, to whom they owed a significant amount of debt.
¶6 After DiAnn filed for divorce, but prior to trial, Ben relocated to Florida and accepted employment there as a neurosurgeon. In his new position, Ben was paid less than he had been paid in St. George: instead of earning as much as $110,000 per month, Ben was now earning some $80,000 per month (nearly $1 million annually) in gross income. But in Florida, Ben had a less hectic work schedule, typically working 50 to 60 hours per week as opposed to the 80 to 100 hours per week he had often been working in St. George.
¶7 Also prior to trial, DiAnn filed a financial declaration with the trial court. In that declaration, she claimed $32,577.24 in monthly expenses, including—among other things—$16,132.24 for the mortgage payments on the parties’ large house; $1,880 for maintenance on the house; $2,000 for food and household supplies; $2,400 for utilities; $1,250 for half of the loan payments to her father; $855 for the children’s extracurricular activities; and $577.24 for travel, which included the costs associated with a timeshare condominium the couple owned in Hawaii.
¶8 Soon thereafter, the case proceeded to a bench trial, which was held over two days in September 2020. During the trial, the court heard testimony from DiAnn and Ben, as well as several other witnesses. DiAnn asked the court to find that Ben was voluntarily underemployed—because he was earning less in Florida than he had in St. George—and additionally asked that Ben’s higher St. George salary be imputed to him for the purposes of child support and alimony. In light of this request, and based on her expert’s testimony that the parties had established a standard of spending some $70,000 per month during the marriage, DiAnn asked the court to award her $11,050 per month in child support and some $35,000 per month in alimony.
¶9 In response to DiAnn’s argument that he was voluntarily underemployed, Ben called an expert to testify that, even with his reduced income, Ben’s earnings were above the 90th percentile of income for neurosurgeons in the United States. Ben thus requested that alimony and child support be calculated based on his Florida income and that the court reject DiAnn’s assertion that he was voluntarily underemployed.
¶10 We will discuss some of the particulars of the court’s ruling in more detail below, on an issue-by-issue basis. But in broad strokes, the court ruled in relevant part as follows: (a) the parties were awarded joint legal custody of the children; (b) DiAnn was awarded primary physical custody; (c) Ben was allowed parent-time pursuant to Utah Code section 30-3-37; (d) Ben’s monthly income would be calculated based on his Florida income, not his St. George income; (e) DiAnn’s net income was initially set at $699 per month, but would increase to $2,915 per month after two years; (f) Ben was not voluntarily underemployed; (g) Ben was ordered to pay DiAnn $9,760 per month in child support, which would decrease as the children transitioned into adulthood; (h) Ben was ordered to pay DiAnn $15,039 per month in alimony for a period of two years, and then $12,995 per month for another 22 years, unless terminated earlier “upon the death of either party, the remarriage or cohabitation of [DiAnn], or for any other reason under Utah law”; and (i) DiAnn was assigned sole responsibility for the marital debt owed to her father.
ISSUES AND STANDARDS OF REVIEW
¶11 DiAnn now appeals various aspects of the trial court’s rulings, and presents three principal issues for our review.[3] First, she challenges various aspects of the court’s alimony award. We review a court’s “alimony determination for an abuse of discretion and will not disturb its ruling on alimony as long as the court exercises its discretion within the bounds and under the standards our supreme court has set and so long as the trial court has supported its decision with adequate findings and conclusions.” Miner v. Miner, 2021 UT App 77, ¶ 11, 496 P.3d 242 (quotation simplified).
¶12 Second, DiAnn argues that the court abused its discretion when it assigned her the sole responsibility for the parties’ debt owed to her father and included the full payment for that debt in its alimony calculation. “The trial court’s division of debts is reviewed for abuse of discretion.” Boggess v. Boggess, 2011 UT App 84, ¶ 2, 250 P.3d 86 (per curiam). And because trial courts are in the “best position to weigh the evidence, determine credibility and arrive at factual conclusions, they have considerable latitude” to equitably divide marital debt “and their actions are entitled to a presumption of validity.” Mullins v. Mullins, 2016 UT App 77, ¶ 20, 370 P.3d 1283 (quotation simplified). “Accordingly, it would be inappropriate for an appellate court to reverse on an isolated item of property or debt distribution.” Id. (quotation simplified). “Rather, we must examine the entire distribution to determine if the trial court abused its discretion.” Id. (quotation simplified).
¶13 And finally, DiAnn asserts that the court erred when it found that Ben was not voluntarily underemployed. We “review the trial court’s finding of voluntary unemployment or underemployment and its calculation of imputed income for an abuse of discretion.” Christensen v. Christensen, 2017 UT App 120, ¶ 10, 400 P.3d 1219. “We will not disturb a trial court’s findings of fact unless they are clearly erroneous, that is, unless they are in conflict with the clear weight of the evidence, or this court has a definite and firm conviction that a mistake has been made.” Pope v. Pope, 2017 UT App 24, ¶ 4, 392 P.3d 886 (quotation simplified).
ANALYSIS
¶14 We begin with DiAnn’s challenge to the trial court’s alimony award, analyzing each aspect of that challenge in turn.
We then turn to DiAnn’s assertion that the court abused its discretion in assigning her the marital debt owed to her father. We conclude by examining DiAnn’s challenge to the court’s finding that Ben was not voluntarily underemployed.
I. Alimony
¶15 “Under Utah law, the primary purposes of alimony are: (1) to get the parties as close as possible to the same standard of living that existed during the marriage; (2) to equalize the standards of living of each party; and (3) to prevent the recipient spouse from becoming a public charge.” Miner v. Miner, 2021 UT App 77, ¶ 14, 496 P.3d 242 (quotation simplified). “Alimony is not limited to providing for only basic needs but should be fashioned in consideration of the recipient spouse’s station in life in light of the parties’ customary or proper status or circumstances, with the goal being an alimony award calculated to approximate the parties’ standard of living during the marriage as closely as possible.” Id. (quotation simplified).
¶16 During their marriage, DiAnn and Ben enjoyed a high standard of living, and in an attempt to approximate that standard of living, the trial court ordered Ben to pay DiAnn more than $15,000 per month in alimony for two years, and nearly $13,000 per month for 22 years thereafter. DiAnn takes issue with this alimony award.
¶17 But in so doing, DiAnn does not challenge the court’s decision about the duration or future reduction of the award, nor does she take issue with any of the specific line-item calculations the court made in arriving at the total alimony amount. Instead, DiAnn advances two other arguments. First, she asserts that the court erred by not starting its analysis by making a separate finding regarding the parties’ “marital standard of living,” and by not taking that standard of living sufficiently into account. Second, DiAnn argues that the court abused its discretion when it included the children’s extracurricular activity expenses in its alimony calculation, and then ordered that DiAnn be responsible for those expenses. We address each of these arguments, in turn.
A. Marital Standard of Living
¶18 DiAnn’s first challenge is an assertion that the trial court failed to properly take into account the parties’ marital standard of living. Specifically, relying on Rule v. Rule, 2017 UT App 137, 402 P.3d 153, DiAnn argues that the court failed to start its alimony analysis by making a separate finding specifically calculating the overall marital standard of living, and asserts that the court erroneously “moved straight to an arbitrary needs-based alimony analysis.” This, DiAnn asserts, contradicts the “roadmap” set out in Rule. In particular, DiAnn points to her own expert’s analysis—that the parties were spending, on average, more than $70,000 per month during the marriage—and asserts that the court should have concluded that she is entitled to half that amount in alimony, at least as long as Ben is able to pay it.
¶19 DiAnn misreads Rule. To be sure, in that case we noted that one of the purposes of alimony is “to get the parties as close as possible to the same standard of living that existed during the marriage,” and we categorized it as “inherently problematic for a trial court to attempt to design an alimony award that advances the overall goal of allowing the parties to go forward with their lives as nearly as possible at the standard of living enjoyed during marriage without first determining what that standard was in the first instance.” See id. ¶¶ 14, 18 (quotations simplified). But we clarified that a court appropriately takes that standard of living into account by “assess[ing] the needs of the parties, in light of their marital standard of living.” Id. ¶ 19 (quotation simplified); see also id. ¶ 15 (noting that trial courts are required “to determine the parties’ needs and expenses . . . in light of the marital standard of living”). The ceiling on a recipient spouse’s alimony award is represented by that spouse’s needs, viewed in light of the marital standard of living. See id. ¶ 17 (“The receiving spouse’s needs ultimately set the bounds for the maximum permissible alimony award.”); see also Vanderzon v. Vanderzon, 2017 UT App 150, ¶ 61, 402 P.3d 219 (stating that “in no case may the trial court award [the recipient spouse] more alimony than [his or] her demonstrated need”); Jensen v. Jensen, 2008 UT App 392, ¶ 13, 197 P.3d 117 (stating that, “regardless of the payor spouse’s ability to pay more, the recipient spouse’s demonstrated need must constitute the maximum permissible alimony award” (quotation simplified)). There is usually no need for a trial court to make a separate specific finding regarding the overall “marital standard of living” as measured by the total amount of money spent each month by the couple while they were married, and we did not intend to imply otherwise in Rule.
¶20 Indeed, in that case we made clear that we were not prescribing any deviation from the “established . . . process to be followed by courts considering an award of alimony.” See Rule, 2017 UT App 137, ¶ 19; see also id. ¶ 13 (citing the statute now codified at Utah Code section 30-3-5(10)(a), and stating that “courts must consider the statutory” alimony factors, which are “the financial condition and needs of the recipient spouse,” “the recipient’s earning capacity,” and “the ability of the payor spouse to provide support” (quotation simplified)). The first step in that process is for the court to “assess the needs of the parties, in light of their marital standard of living.” Id. ¶ 19 (quotation simplified). “This means that the court must determine the parties’ needs reasonably incurred, calculated upon the standard of living enjoyed during the marriage.” Id. (quotation simplified). In the next step, the court must “determine the extent to which the receiving spouse is able to meet [his or] her own needs with [his or] her own income,” and if the receiving spouse “is able to meet all [his or] her needs with [his or] her own income, then [the court] should not award alimony.” Id. (quotation simplified). Finally, and only if the court determines that the recipient spouse cannot meet his or her own needs, the final step in the process is for the court to “assess whether the payor spouse’s income, after meeting his [or her] needs, is sufficient to make up some or all of the shortfall between the receiving spouse’s needs and income.” Id. ¶ 20 (quotation simplified).
¶21 The trial court followed this three-step process in this case. It made twenty-three separate line-item findings regarding DiAnn’s reasonable monthly expenses, using her requested amounts as a starting point, and it adjusted four of the line items downward and three of them upward. The court determined that DiAnn’s reasonable monthly needs, as adjusted, amounted to $25,424.61. And on appeal, DiAnn does not take issue with any of the twenty-three specific line-item findings. That is, she does not assert that any of those particular findings—for instance, her housing expenses, or her automobile expenses—are not in harmony with the marital standard of living.
¶22 The court also made findings regarding DiAnn’s ability to earn income, and determined that her net income (after taxes) was $699 per month for the first two years, and then would be adjusted to $2,915 per month. The court then subtracted her income and the child support payments from her needs, and determined that DiAnn would have a monthly shortfall of $15,039 per month for the first two years, which would narrow to $12,995 per month after that. On appeal, DiAnn does not specifically challenge these calculations, including the court’s findings regarding her ability to earn income.
¶23 Finally, the court assessed whether Ben had the ability to pay DiAnn’s demonstrated shortfall, and determined that he did, even using Ben’s Florida income rather than his St. George income, and even after paying child support and meeting his own reasonable monthly needs. DiAnn’s only complaint about this analysis is that the trial court erred by using Ben’s Florida income for the basis of its computation, as opposed to his St. George income. But DiAnn of course does not quibble with the court’s ultimate conclusion that Ben can meet every dollar of her demonstrated shortfall.
¶24 We perceive no error in the procedure the trial court employed in computing DiAnn’s alimony award. As noted, the court appropriately went through the three-step process required by applicable law. If DiAnn believed that the court inappropriately assessed any of her individual expenses, as measured in light of the marital standard of living, she had every opportunity to challenge any of the specific line-item calculations the court relied on in determining her monthly needs. See Miner, 2021 UT App 77, ¶¶ 20–63 (evaluating an appellant’s challenges to eleven separate line items in a trial court’s calculation of a recipient spouse’s needs). But she does not challenge any of them.
¶25 DiAnn has therefore not carried her appellate burden of demonstrating that the trial court failed to appropriately take into account the marital standard of living in calculating her needs. In this case, the court was not required to make any specific finding regarding how much total money the parties spent each month during the marriage, and it was certainly not required to presumptively award DiAnn half of any such amount as alimony. In short, we perceive no abuse of discretion in the manner in which the court assessed DiAnn’s needs or in which it took into account the parties’ marital standard of living, and on that basis we reject DiAnn’s first challenge to the alimony award.
B. Extracurricular Activities
¶26 DiAnn next contends that the court abused its discretion when it included the minor children’s extracurricular activity expenses in its alimony award to DiAnn. Specifically, she argues that the extracurricular expenses should have been included in an increased child support award instead of the alimony award or, alternatively, that the court should have “issued a separate award equitably dividing the expenses.” We disagree.
¶27 Presumptive monthly child support payment amounts are set by statutory schedule, depending on the incomes of the parents and the precise custody arrangement between them. See Utah Code Ann. §§ 78B-12-205, -212, -301 (LexisNexis 2018). These presumptive monthly payments are designed to include nearly all reasonable needs of children, except for items that are statutorily excluded (such as, for instance, medical expenses and work-related childcare expenses). See Davis v. Davis, 2011 UT App 311, ¶ 17, 263 P.3d 520 (noting that medical expenses and work-related childcare expenses have been “singled out” by the legislature as something that “parents are ordered to pay in addition to their regular child support obligations”). “Child-rearing expenses” that are “not statutorily distinguished from regular child support should be considered part and parcel of the child support award.” Id. (quotation simplified).
¶28 In particular, we have held that “school fees” and “extracurricular activities” are presumed to be included in the “regular child support” payment amount, and ordinarily “must be satisfied, if at all, out of the parties’ combined child support obligations.” Id. ¶¶ 15, 17. Certainly, parties can agree “to share such additional expenses in the interest of their children,” but if they are unable to reach agreement on that score, such expenses “must generally be budgeted as part of child support.” Id. ¶ 15. Thus, in the present case, any expenses associated with the extracurricular activities in which the Fox children participate were designed to be budgeted as part of the $9,760 that DiAnn receives in child support each month.
¶29 Based on Davis, then, the trial court would have been on completely solid ground to decline DiAnn’s request to include a line item of $855 for “extracurricular activities” in her list of monthly expenses for purposes of the alimony calculation. But the court went ahead and included that line item in its computation of DiAnn’s monthly needs for alimony purposes anyway, effectively giving DiAnn an $855 monthly bump in alimony to which she may not have been entitled.[4]
¶30 DiAnn looks this gift horse quite squarely in the mouth and complains that the court should have given her this bonus payment in a different form: by issuing a separate award— consisting of neither child support nor alimony—commanding Ben to pay the extracurricular expenses. Apparently, she is concerned that, if she remarries, Ben’s obligation to pay these expenses will evaporate along with the other alimony line items. Certainly, the trial court could—within the wide discretion afforded trial courts in such matters—have made such an award, provided it adequately explained its reasons for doing so. See id. ¶ 17 (noting that a court can deviate from the presumptive child support guidelines and order a higher amount designed to include “school fees,” but such an order “must be supported by a specific finding on the record supporting the conclusion that use of the guidelines would be unjust, inappropriate, or not in the best interest of the children” (quotation simplified)). But DiAnn falls far short of persuading us that the court abused its discretion by opting not to do so, especially given that she included this line item in her financial declaration, which was the basis for her alimony request. On this basis, we reject DiAnn’s second challenge to the court’s alimony award.
II. Marital Debt
¶31 DiAnn next asserts that the trial court abused its discretion when it divided the marital debt in such a way as to give her full responsibility for the parties’ $181,000 obligation owed to DiAnn’s father, and then included a $2,500 line item for payments servicing that debt in DiAnn’s alimony award (thereby effectively requiring Ben to pay that debt as part of his alimony obligation). We perceive no abuse of discretion in the trial court’s orders regarding the marital debt owed to DiAnn’s father.
¶32 In issuing a divorce decree, a trial court must include “an order specifying which party is responsible for the payment of joint debts, obligations, or liabilities of the parties contracted or incurred during marriage.” Utah Code Ann. § 30-3-5(2)(c)(i) (LexisNexis Supp. 2021). Importantly, our law requires only “a fair and equitable, not an equal, division of the marital debts.” Sinclair v. Sinclair, 718 P.2d 396, 398 (Utah 1986) (per curiam). And as already mentioned, because trial courts are in the “best position to weigh the evidence, determine credibility and arrive at factual conclusions, they have considerable latitude” in dividing marital debt, and their actions in this regard “are entitled to a presumption of validity.” Mullins v. Mullins, 2016 UT App 77, ¶ 20, 370 P.3d 1283 (quotation simplified).
¶33 In the present case, we cannot say that the trial court abused its discretion in assigning the marital debt owed to DiAnn’s father to DiAnn. By way of counterbalance, the court assigned Ben full responsibility for his medical school debts (totaling some $145,000), and made each party responsible for the debts on their respective vehicles. This division makes practical sense, because it relieves DiAnn of any responsibility for debts associated with Ben’s medical education, and it relieves Ben of any direct responsibility (aside from alimony) for debts owed to DiAnn’s father. The court recognized, however, that this distribution of debts gave DiAnn “approximately $24,000 more in debts” than it gave Ben, but the court stated that it would “use its distribution of property to equalize this imbalance of debts.” DiAnn makes no argument that the court failed to remedy this imbalance. Indeed, the court awarded the parties’ timeshare condominium in Hawaii to DiAnn alone, and it also awarded DiAnn three of the four cars owned by the parties. Additionally, the court awarded DiAnn an offset of $10,000 “to compensate her for any dissipation of the marital estate” on the part of Ben, and also awarded her $50,000 for attorney fees from any proceeds made from the sale of the marital house prior to the parties evenly splitting any remaining proceeds. Under the circumstances presented here, DiAnn has not demonstrated any inequity or abuse of discretion in the manner in which the court divided the parties’ marital debts.
¶34 Furthermore, while DiAnn was indeed assigned responsibility for the entire debt owed to her father, a line item for the $2,500 monthly payment of that debt was included in her alimony award. Thus, while the court made DiAnn responsible for that debt, it is Ben, and not DiAnn, who is (at least indirectly) paying for it. DiAnn nevertheless complains about this seemingly favorable arrangement, again expressing concern that, if she were to remarry, Ben’s obligation to front her the money to service the debt owed to her father would evaporate along with the other alimony line items. Perhaps a trial court, within the scope of its discretion, could have done what DiAnn envisions. But under the specific facts of this case, it is not an abuse of discretion for the court to have equitably divided the debt, and then to have required Ben to pay DiAnn an alimony amount that includes the debt service payments on the obligation owed to DiAnn’s father. Given the circumstances as they existed at the time of trial, DiAnn has not demonstrated that the court’s orders regarding the parties’ debt to DiAnn’s father exceeded the court’s wide discretion in such matters.
III. Voluntary Underemployment
¶35 Finally, DiAnn argues that the trial court abused its discretion when it found, for purposes of calculating child support and alimony, that Ben was not voluntarily underemployed. Specifically, DiAnn asserts that because Ben took a job in Florida that paid him less than what he had been making in St. George, the court should have concluded that Ben is voluntarily underemployed and should have calculated child support and alimony based on Ben’s previous St. George salary.
¶36 As an initial matter, we note that this entire issue is irrelevant to the alimony computation, given our determination (discussed above) that the trial court did not abuse its discretion in making its alimony award. Even using Ben’s Florida salary for purposes of computing Ben’s income, the trial court found that Ben had the financial ability to make up 100% of the difference between DiAnn’s income and her reasonable needs. See supra ¶¶ 19, 23–24. Thus, even if we were to agree with DiAnn that Ben was voluntarily underemployed and that the trial court should have used his St. George salary in computing his income, DiAnn’s alimony award would not change. But because the issue could still matter to the child support calculation, we proceed to address the merits of DiAnn’s challenge to the trial court’s findings regarding voluntary underemployment.
¶37 “A court may impute income to an underemployed spouse.” Rayner v. Rayner, 2013 UT App 269, ¶ 7, 316 P.3d 455 (quotation simplified). In order to do so, however, the court must determine that the spouse “is voluntarily . . . underemployed.” Id. (quotation simplified). We agree with DiAnn that Ben’s employment actions—in taking a new job in Florida—were voluntary. See id. (“A spouse is voluntarily unemployed or underemployed when he or she intentionally chooses of his or her own free will to become unemployed or underemployed.” (quotation simplified)). But DiAnn has not persuasively demonstrated that the trial court abused its discretion in determining that Ben was not underemployed.
¶38 The determination as to whether a party is underemployed requires examination of all the relevant circumstances, and not just whether a party’s salary has recently dropped. Indeed, a party’s “current earnings, as compared to his [or her] historical income, is merely one element in the matrix of factual issues affecting the ultimate finding of whether [a party] is underemployed.” Hall v. Hall, 858 P.2d 1018, 1026 (Utah Ct. App. 1993); see also Vanderzon v. Vanderzon, 2017 UT App 150, ¶ 65, 402 P.3d 219 (stating that “income imputation shall be based upon employment potential and probable earnings as derived from employment opportunities, work history, occupation qualifications, and prevailing earnings for persons of similar backgrounds in the community” (quotation simplified)).
¶39 In the present case, the trial court did not abuse its discretion in finding that Ben was not underemployed. Certainly, Ben’s income is lower in Florida than it was in St. George. And a drop in income can be an important factor in determining that a spouse is underemployed. See, e.g., Arnold v. Arnold, 2008 UT App 17, ¶ 7, 177 P.3d 89. But the mere fact that a spouse’s income has fallen does not necessarily mandate a finding of underemployment.[5] In the present case, the court was presented with ample evidence to support its determination that Ben— despite his lower salary—was not underemployed. Ben had not left his profession—he was employed as a neurosurgeon in St. George, and he was employed as a neurosurgeon in Florida. And even in Florida, Ben still made a lot of money; indeed, Ben’s expert testified that Ben’s Florida salary—nearly $1 million per year— was above the 90th percentile for neurosurgeons nationwide, not just for doctors. The trial court also credited Ben’s testimony that the work schedule he had been maintaining in St. George was not sustainable, and that he was “over-worked and burnt out.” And in Florida, Ben was still working 50 to 60 hours per week, up to half again as much as a typical full-time job. All of this evidence supports the court’s finding that Ben was not underemployed, voluntarily or otherwise.
¶40 Under these circumstances, we cannot say the court abused its discretion in finding that Ben was not voluntarily underemployed. While the court’s determination was perhaps not the only permissible one under the circumstances, it is “entitled to a presumption of validity,” Mullins v. Mullins, 2016 UT App 77, ¶ 20, 370 P.3d 1283 (quotation simplified), was supported by competent evidence, and did not constitute an abuse of discretion.
CONCLUSION
¶41 We perceive no abuse of the trial court’s discretion in its alimony award, its division of marital debts, or its determination that Ben was not voluntarily underemployed. On that basis, we reject DiAnn’s appellate challenges.
It depends upon what you mean by “win financially.” Man divorcing people define this term differently, and the differences are extreme.
Some people define “winning financially” as:
coming away from the divorce action either 1) with as much money and and as many assets as one can get; and 2) with as few financial obligations (i.e., to one’s ex-spouse and children and/or to marital creditors) as possible; and
achieving that goal by taking an ends justify the means approach (i.e., no holds barred).
Other people define “winning financially” as being treated fairly, i.e.:
getting an equal portion of the marital assets;
receiving or paying alimony (and if one has minor children, child support) that is set at a reasonable, feasible, and fair amount;
not being saddled with a disproportionate amount of marital debts and obligations.
The easiest way (the risky, illegal, and immoral way, but still the easiest way) to win many issues in a divorce action, including but not limited to financial issues: skilled lying, deception, and concealment.
The right way (the honest, risky, legal, and moral way):
first and foremost, to act in conformity with the principle of Mark 8:36 (“What doth it profit a man, to gain the whole world, and lose his own soul?”)
understand that winning the right way takes effort and courage, and commit to exerting both to the bitter end
know what law applies to the particular financial issues of your case
know how the applicable law applies to the particular financial issues of your case
acknowledge the relevant facts on both sides of the issue.
acknowledge those of your arguments which the facts do not support.
do not try to bamboozle the court into accepting losing arguments. That only weakens your credibility as to the arguments that favor you.
demonstrate and articulate clearly the relevant facts that support your winning arguments.
don’t let an inattentive, incompetent, or biased judge disregard or twist your admissible evidence, relevant facts, and winning arguments. Stand your ground. Give no quarter. Have the courage to defend your arguments when you are in the right. You will likely need to do so, at least some times in the course of the divorce proceedings, to win those arguments.
Utah Family Law, LC | divorceutah.com | 801-466-9277
What are the most important changes to the family law in the 19th century and 20th century up to today, and why?
In my opinion (and in no particular order):
No-fault divorce
Abolition of the doctrine of coverture (femme couvert)
Tender Years doctrine (and the abrogation of the Tender Years doctrine)
Statutory child support
Same sex marriage
We need to get one misconception out of the way immediately, and that is that wives were treated as the husband’s property in the past. They were not.
This does not mean that women were treated differently than men and husbands under the law, but women were not treated as their husbands’ property and unmarried women could own property and enter into contracts. See Husband and Wife Are One–Him: Bennis v. Michigan as the Resurrection of Coverture (4 MIJGL 129, Amy D. Ronner Michigan Journal of Gender & Law)
At common law, an adult single woman could own, manage and transfer property. She could sue and be sued. She could likewise earn money and enjoy it as her own. Once that same woman married, however, her status changed radically; coverture subsumed her legal identity into her husband’s.
Blackstone described coverture status as follows:
By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of husband: under whose wing, protection, and cover, she performs everything; and is therefore called in our law-French a feme covert, foemina viro co-operta; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of an [sic] union of person in husband and wife, depend almost all the legal rights, duties and disabilities, that either of them acquire by the marriage. The coverture doctrine prevented a man from granting anything to his wife or from entering into a contract with her. Such actions would be futile because they would “suppose her separate existence . . . and to covenant with her, would be only to covenant with himself.”
The coverture merger was not mere metaphysics, but imposed real disabilities on the married woman. For example, a wife relinquished the control of her real property to her “baron” and although he could not alienate the rents and profits, he was not obligated to account for them to her. Moreover, her husband enjoyed complete control of his wife’s interests, which meant that he could alienate them and unilaterally pocket the proceeds. All chattels that a woman owned at the time of marriage and those she acquired thereafter belonged to her husband. The suspension of a wife’s legal identity also meant that she could not sue or be sued at law unless her husband had joined in the action or “ha[d] abjured the realm, or is banished.”
Coverture prohibited husband and wife from testifying for or against each other in trials “principally because of the union of person.” That is, such testimony would be irrebuttably presumptively self-serving or self-incriminating. In criminal law, a husband and wife could not comprise a conspiracy because one person could not conspire with himself. They also could not steal from one another because the property belonged essentially to only one–him. In other situations the wife was utterly divested of free will and viewed as “inferior to him, and acting by his compulsion.” For example, because certain criminal acts on her part, short of treason or murder, were viewed as if done under his “command,” coverture bestowed upon the married woman a specie of immunity.
Utah Family Law, LC | divorceutah.com | 801-466-9277
How should the child support payment system in the U.S. be changed to make it more fair?
What is unfair about child support for the child support payor (also known as the child support obligor):
tying child support to the number of overnights the child spends in the custody of a parent entices many parents to seek being awarded as many overnights as possible, thereby ensuring that the one receiving child support receives as much as possible or ensuring that the one who pays child support pays as little as possible. Even when the child would benefit from being in the joint (or even joint equal) physical custody of the parents, many parents try to seek sole or primary physical custody awards simply to gain the child support calculation process.
child support recipients (also known as the child support payees or obligees) who use child support money for the their own personal expenses and not for the child’s actual support.
lack of accountability on the part of the child support recipient for how the child support monies are spent, to ensure that the monies are being spent on the financial support of the child, as opposed to the personal expenses of the child support recipient.
child support calculation formulae that are not commensurate with the child’s actual financial needs, i.e., orders that someone has to pay more money each month (in some cases substantially more money) than is necessary to meet the child needs.
child support awards that “kill the goose that lays the golden eggs” by requiring such a high amount of child support be paid that the child support payor cannot meet his/her own basic monthly costs of living.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Ryan A. Rudd and Nicholas S. Nielsen, Attorneys for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which JUDGES GREGORY K. ORME and JILL M. POHLMAN concurred.
MORTENSEN, Judge:
¶1 When Vicki and Randall Beckham came before the district court for a bench trial on a divorce petition, Vicki[1] asked the court to order that she be a named beneficiary under one of the then-existing term life insurance policies on Randall. The court denied this request, a determination with which neither party takes issue. Despite both parties acknowledging that the policy had no value, however, and while expressly noting that the policy was not presented in evidence, the district court ordered Randall to reimburse Vicki the premiums she had paid for this “asset” for several years to the tune of $40,000. Randall appeals, claiming the district court erred in this award. We agree and reverse.
¶2 During the divorce proceeding, Vicki and Randall disputed how two term life insurance policies on Randall’s life should be treated. Vicki asserted that the court should award her a beneficiary interest in one of the policies. In ruling on the matter, the district court noted that the parties had failed to provide the court “with the policies at issue” and that it was “unclear whether these term life insurance policies were renewable by year, or after a number of years, or ended upon Randall’s death, or were terminated in the event of a divorce.” The court also stated that “Vicki’s counsel argued that they did not receive the policy in discovery,” and citing rule 37 of the Utah Rules of Civil Procedure, the court opined that “if that [was] the case, that issue could have and should have been resolved through the appropriate pretrial procedure.” See Utah R. Civ. P. 37(a)(1)(E) (“A party . . . may request that the judge enter an order . . . compelling discovery from a party who fails to make full and complete discovery.”).
¶3 Although the court determined that it “may award a life insurance beneficiary interest to a spouse upon divorce, under general principles of law concerning the apportionment of marital assets,” it declined to do so, reasoning that Vicki did not have a financial need for the insurance benefits, that the parties never reached an understanding regarding the apportionment of the life insurance policies, and that there was “no reason to perpetuate a relationship between” the parties by granting Vicki a beneficiary interest in a policy on Randall’s life. Accordingly, the court concluded that the policies would “remain with Randall” and that he would “continue to control the beneficiary designation going forward.”
¶4 However, the court found that the parties had treated the “two policies as marital assets during the marriage,” that each party had “spent a significant amount on annual premiums,” that the “policies were clearly part of the parties’ future planning and provided a benefit to them,” and that the “evidence was clear that each party used their own funds to pay for the respective policies.”
¶5 Accordingly, the court determined that Vicki should be reimbursed for her contribution to the premiums of one of the policies:
[I]n the interest of fairness and equity, Vicki should be awarded $40,000 from Randall to reimburse her for the annual premiums she paid for the policy over the past eight years. The testimony at trial was very clear that each party used their own funds to pay for the respective policies. Thus, Vicki contributed to an asset that will remain with Randall; it is thus fair and equitable for him to reimburse her for the amounts she paid—amounts that have maintained the policy and allowed Randall to perpetuate that [p]olicy on behalf of his newly named beneficiaries.
Randall appeals, asserting that the district court should not have ordered reimbursement of premiums paid during the marriage.
ISSUE AND STANDARDS OF REVIEW
¶6 Randall argues that the district court erred “in invoking its equitable powers to order [him] to reimburse [Vicki] for term life insurance policy premiums paid during the marriage.” “A district court has considerable discretion considering property division in a divorce proceeding, thus its actions enjoy a presumption of validity. We will disturb the district court’s division only if there is a misunderstanding or misapplication of the law indicating an abuse of discretion.” Johnson v. Johnson, 2014 UT 21, ¶ 23, 330 P.3d 704 (cleaned up). And “[w]hen a district court fashions an equitable remedy, we review it to determine whether the district court abused its discretion.” Collard v. Nagle Constr., Inc., 2006 UT 72, ¶ 13, 149 P.3d 348; accord Kartchner v. Kartchner, 2014 UT App 195, ¶ 14, 334 P.3d 1.
ANALYSIS
¶7 In a divorce proceeding, a district court is empowered to enter “equitable orders relating to the children, property, debts or obligations, and parties.” See Utah Code Ann. § 30-3-5(1) (LexisNexis Supp. 2021). Here, the district court characterized the life insurance policy as a marital asset. Citing Utah Code section 30-3-5, the court noted its authority to divide marital assets and indicated that the parties had “treated” the policy as a “marital asset[] during their marriage” and that “Vicki contributed to an asset that will remain with Randall.”
¶8 The court explicitly acknowledged that it did not have access to the life insurance policies because the parties did not provide them to the court.[3] Given this lacuna, the court acknowledged that it was “unclear whether these term life insurance policies were renewable by year, or after a number of years, or ended upon Randall’s death, or were terminated in the event of a divorce.” But the court also noted that Vicki “could have and should have” resolved the lack of production “through the appropriate pretrial procedure,” presumably a statement of discovery issues seeking to compel discovery. See Utah R. Civ. P. 37(a)(1)(E).
¶9 Given the court’s acknowledgment that it was unaware of the nature of the policy, it follows that it was equally unaware whether the policy was still in effect or if it had cash value. Indeed, Vicki took the position at trial that the insurance policy had no value: “[T]hese . . . term life insurance policies . . . don’t have value. It’s contingent upon an act.” And she explicitly stated that the policy had no “cash value” and was limited to “[j]ust the death benefit.” Randall also took the position that the policy had “no value.” Neither the district court’s findings of fact and conclusions of law nor the parties’ briefs on appeal point to any record basis on which to base a conclusion that the insurance policy retained any value. Instead, all the value related to the policy—as far as the record indicates—was consumed during the marriage.[4]
¶10 Accordingly, Vicki was not entitled to reimbursement for the premiums for the simple reason that either she or the marital estate received the value—in the form of mitigating the risk in the event of Randall’s death—of the premiums she paid. Short of collecting on a claim, mitigation of risk is generally the very nature of the benefit one receives from insurance. Vicki may indeed be entitled to reimbursement if the premiums had enhanced the value of Randall’s estate to her exclusion. But on the record before us, the payment of the insurance premiums did not enrich Randall such that he continued to enjoy—to the exclusion of Vicki—the benefit of the premiums after the divorce. Or put another way, there is no record evidence that Randall “is retaining some sort of good purchased with the money” spent on the life insurance premiums. See In re Marriage of Fluent, No. 16-1321, 2017 WL 2461601, at *3 (Iowa Ct. App. June 7, 2017).[5] Rather, the only conclusion that the sparse evidence could sustain is that the “benefit” of the insurance premiums was received by Vicki during the corresponding terms of life insurance coverage. And this benefit consisted of protection from the risk associated with Randall’s potential death during each of the paid terms of the policy—a benefit that was consumed in each term. But after each paid term lapsed, Randall did not retain some benefit from the premiums—or at least there is no record evidence of a retained benefit. Thus, the premiums were not reimbursable to Vicki because she—or the marital estate—had already received the value of those premiums in the coverage the insurance policy provided on Randall’s life during the marriage.
¶11 Expressed differently, the premiums were a paid-for resource that had been consumed—like many household expenditures—during the marriage. And like the money paid for any other proper living expense incurred during a marriage, the money paid for the insurance premiums was not reimbursable upon divorce because the value of the expense associated with that item—in this case, assurance against risk provided by insurance premiums—was used up during the marriage. See Heckler v. Heckler, No. FA040084101S, 2005 WL 529940, at *1–2 (Conn. Super. Ct. Jan. 27, 2005) (denying, in a divorce proceeding, a husband’s request that his former wife reimburse him for “certain living expenses he paid on the wife’s behalf during the marriage”); see also Czepiel v. Allen, No. FA 9886060, 1999 WL 99097, at *1 (Conn. Super. Ct. Feb. 16, 1999) (“The court does not allow reimbursement for telephone bill expenses or other household expenses [that] were joint undertakings of their family . . . .”). The insurance premiums Vicki paid—even if they did proceed from her own earnings—were akin to the living expenses that are “part and parcel” of the daily marital undertaking. See Czepiel, 1999 WL 99097, at *2. As such, they were not reimbursable to her upon divorce as she had already received the value she bargained for in voluntarily assuming the expense of the premiums.
¶12 Thus, the expenditures for the insurance premiums fell into the category of normal living expenses voluntarily paid from marital assets, and they were not subject to reimbursement because they had been entirely exhausted and consumed in paying for a marital expense, namely, buying life insurance for Randall—from which Vicki would have benefited had Randall died during the term of the policy. See Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988) (“[I]n Utah, trial courts making ‘equitable’ property division pursuant to section 30-3-5 should . . . generally award property acquired by one spouse by gift and inheritance during the marriage (or property acquired in exchange thereof) to that spouse, together with any appreciation or enhancement of its value, unless . . . the property has been consumed . . . .” (emphasis added)); see also In re Marriage of Rolfe, 699 P.2d 79, 84 (Mont. 1985) (noting that the district court “erred in returning the value of” certain prenuptial property that had “long since been consumed” during the course of a fifteen-year marriage); In re Marriage of Fluent, 2017 WL 2461601, at *3 (determining that it was “inequitable” to require a wife to reimburse her former husband $74,000 of his own funds that he had voluntarily used during the marriage “to maintain the parties’ basic standard of living” and “for the benefit of both himself and his family, without providing any accounting for these expenditures or identifying any asset (beyond the marital home) into which the monies were allegedly spent” (cleaned up)).
¶13 Accordingly, the district court exceeded its discretion in ordering reimbursement where there was no evidence that Randall continued to benefit after the divorce from the previous payments of the premiums.
CONCLUSION
¶14 Because Vicki had already received the benefit of the insurance premiums she paid, we conclude that the district court exceeded its discretion in ordering Randall to reimburse Vicki $40,000 for the premiums.
[1] Our practice is to refer to parties by their first names when they share a last name.
[2] “On appeal from a bench trial, we view the evidence in a light most favorable to the trial court’s findings, and therefore recite the facts consistent with that standard.” Chesley v. Chesley, 2017 UT App 127, ¶ 2 n.2, 402 P.3d 65 (cleaned up).
[3] Insofar as Vicki attempts to cast the absence of the insurance policy as a failure of Randall to disclose it, we note that Vicki had the burden of producing evidence of the provisions of the policy in question. After Randall offered testimony of the policy’s cash value—testimony we note that Vicki appeared to agree with at trial when she characterized the policy as having no “value” apart from its value contingent on Randall’s death, see infra ¶ 9—Vicki had the burden of offering evidence of an alternative valuation. See Argyle v. Argyle, 688 P.2d 468, 470–71 (Utah 1984) (stating that if a party asserts that an asset should be valued by a different measure, then “the burden of offering further evidence on alternative methods of valuation” falls on that party); accord Beesley v. Beesley, 2003 UT App 202U, para. 2.
[e]ach premium payment gives rise to an enforceable contractual right of coverage for an additional period of time. As premiums are paid over the life of the policy, distinct property interests in coverage for various periods of time arise. Of those distinct property interests, only one is worth anything in hindsight: coverage for the term during which the insured dies.
In re Marriage of Burwell, 164 Cal. Rptr. 3d 702, 713 (Cal. Ct. App. 2013). “Prior terms of coverage only lack value in hindsight (i.e., when it is certain the contingency has failed). Prospectively, all coverage terms have at least expected value.” Id. at 713 n.12. Thus, here the policy had no value in the sense that the premium coverage periods had expired without the contingency occurring, and these are the very terms for which Vicki received reimbursement.
[5] It is unclear how the district court found that Randall benefited from the payment of premiums by allowing him to “perpetuate” the policy for “his newly named beneficiaries.” At best, this benefit identified by the court seems speculative because the court had explicitly stated that it did not have access to the policies and that it was “unclear whether these term life insurance policies were renewable by year, or after a number of years, or ended upon Randall’s death, or were terminated in the event of a divorce.”
[6] The court ordered Randall to pay Vicki a cash payment of $68,750 plus any gains realized from non-retirement accounts and IRAs. This amount consisted of equalizing payments of $23,658.50 for non-retirement assets, $2,913 for IRAs, $1,000 for gains on a non-retirement account, $1,250 for a half-interest in a burial plot, and $40,000 for the life insurance premium reimbursement. We note the sum of these values is $68,821.50, which is $71.50 more than the court’s addition yielded. On remand, the court should resolve this discrepancy.
Mary C. Corporon and Kristen C. Kiburtz, Attorneys for Appellant
Marco C. Brown and A. Leilani Whitmer, Attorneys for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES DIANA HAGEN and RYAN D. TENNEY concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Todd D. Horne appeals the district court’s denial of his motion to set aside the stipulated decree of divorce entered in his divorce from Rebecca A. Horne. Because we determine that Todd did not preserve the challenge he raises on appeal, we affirm.
BACKGROUND
¶2 Todd and Rebecca were married in 2014 and have one child together. Rebecca is a lawyer and initiated divorce proceedings based on allegations that Todd sexually assaulted her while she was sleeping. According to Rebecca, Todd admitted to her that he had done this on several occasions.
¶3 According to Todd, between June and September 2019, as the parties were contemplating divorce, Rebecca told him “multiple times that she intended to report him to authorities and that he would be charged criminally for felony sexual assault, that his name would be listed on the sex offender’s registry, that he would lose his job and his reputation along with it, and that he would go to jail or prison … if he contested at all what she wrote in the divorce documents.” Rebecca filed for divorce on September 27, 2019. Todd hired an attorney on October 15, and that day, the attorney filed an appearance with the court. According to Todd, Rebecca was “livid” when she learned he had hired an attorney. That same day, Rebecca filed a police report alleging that Todd had sexually assaulted her. According to Todd, Rebecca then “pressured him to sign” the divorce settlement she had drafted and to discharge his attorney. Todd complied. Rebecca then informed the police that she “no longer wish[ed] to pursue criminal charges” and requested that they close the case. The final decree of divorce was signed in November.
¶4 Seven months later, in June 2020, Todd filed a motion in district court to set aside the divorce decree pursuant to rule 60(b)(6) of the Utah Rules of Civil Procedure. The grounds Todd asserted as a basis for setting aside the decree were that Rebecca “extort[ed] and blackmail[ed]” him “until he signed the stipulation, by advising him that she would make and pursue a false police report against him.” He asserted that he agreed to the stipulation only as a result of this “duress” and that the resulting orders in the decree of divorce “as to child custody and as to property division, child support, and alimony were grossly unjust.”
¶5 The district court denied Todd’s motion after determining it was untimely under rule 60(b). Although Todd’s motion had relied on rule 60(b)(6)—“any other reason that justifies relief”—which requires that the motion be filed “within a reasonable time,” the court determined that the reasons Todd actually asserted to justify setting aside the decree fell under rule 60(b)(3)—“fraud … , misrepresentation or other misconduct of an opposing party”—which requires that the motion be filed “not more than 90 days after entry of the judgment or order.” Utah R. Civ. P. 60(b)–(c). Accordingly, because Todd filed his motion more than ninety days after entry of the decree of divorce, the court declined to set it aside. Todd now appeals.
ISSUE AND STANDARD OF REVIEW
¶6 Todd argues that the district court should have determined that his motion was based on rule 60(b)(6) of the Utah Rules of Civil Procedure rather than rule 60(b)(3) because the court’s failure to weigh the equities of the stipulation was an independent ground for relief. “A district court’s determination that a motion is a rule [60(b)(3)] motion rather than a rule 60(b)(6) motion is a conclusion of law, which we review for correctness.” Yknot Global Ltd. v. Stellia Ltd., 2016 UT App 132, ¶ 13, 379 P.3d 36. However, “[w]e generally do not address unpreserved arguments raised for the first time on appeal.” Gowe v. Intermountain Healthcare, Inc., 2015 UT App 105, ¶ 7, 356 P.3d 683.
ANALYSIS
¶7 Rule 60(b) of the Utah Rules of Civil Procedure allows a party to be relieved of a judgment for several different reasons. See Utah R. Civ. P. 60(b). Subsection six of the rule provides that a party may be relieved from a judgment for “any other reason that justifies relief” from the operation of the judgment. Our supreme court has explained that this “catch-all” provision of rule 60(b) “is meant to operate as a residuary clause.” Menzies v. Galetka, 2006 UT 81, ¶ 71, 150 P.3d 480 (quotation simplified). Because rule 60(b)(6) permits a court to relieve a party from judgment only if the party alleges “any other reason justifying relief from the operation of the judgment,” it “may not be relied upon if the asserted grounds for relief fall within any other subsection of rule 60(b).” Id. (quotation simplified); see also id. (“[T]he grounds for relief under 60(b)(6) are exclusive of the grounds for relief allowed under other subsections.”). In fact, rule 60(b)(6) is to be “sparingly invoked and used only in unusual and exceptional circumstances.” Id. (quotation simplified). A movant may not “circumvent[ ] the time limit applicable to motions based on reasons listed in subparagraphs (1), (2), and (3) by repackaging the claim as one under subparagraph (6).” Thompson v. Wardley Corp., 2016 UT App 197, ¶ 18, 382 P.3d 682.
¶8 To the district court, Todd argued that he was “coerced under duress and extorted into signing the settlement documents” and that this “duress” provided a basis under rule 60(b)(6) to be relieved of the custody and property division provisions in the decree. As noted, the district court rejected Todd’s argument and determined that duress fell under rule 60(b)(3). See Utah R. Civ. P. 60(b)(3) (identifying “fraud … , misrepresentation or other misconduct of an opposing party” as a ground supporting a motion to set aside). In other words, his “motion, though ostensibly based on subparagraph (6), was in substance merely a repackaged motion for relief under subparagraph (3).” See Thompson, 2016 UT App 197, ¶ 18, 382 P.3d 682. Todd does not renew his argument that duress falls under rule 60(b)(6).
¶9 Instead on appeal, Todd argues that although Rebecca’s alleged fraud and duress justified setting the decree aside, he also alleged an “independent ground” under rule 60(b)(6), not fully considered by the district court, that would have allowed relief from the decree: that because “the District Court did not comply with its non-discretionary statutory obligation to consider the best interests of the child and the reasonableness and fairness of the property distribution” in signing the stipulated decree, the decree should be set aside. See Utah Code Ann. § 30-3-5(1) (LexisNexis 2019) (outlining the court’s discretion to make “equitable orders relating to the children, property, debts or obligations, and parties” in a decree of divorce); id. § 30-3-10(2) (outlining the court’s responsibility to “consider the best interest of the child” in determining custody and parent-time). Rebecca, however, contends that Todd did not raise this specific argument below and it was therefore not preserved for appellate review. We agree.
¶10 This court’s preservation requirement is well-settled. “An issue is preserved for appeal when it has been presented to the district court in such a way that the court has an opportunity to rule on that issue.” Wolferts v. Wolferts, 2013 UT App 235, ¶ 19, 315 P.3d 448. “To provide the court with this opportunity, the issue must be specifically raised by the party asserting error, in a timely manner, and must be supported by evidence and relevant legal authority.” Id. (quotation simplified).
¶11 Here, the district court was not given the opportunity to rule on the argument Todd now asserts on appeal—that before entering the stipulated decree of divorce, the court failed to exercise its duty to independently assess whether the parties’ stipulation was equitable and provided for the best interests of the child. While Todd did assert below that the custody award was inequitable and not in the child’s best interests, these assertions were framed as the undesirable results of Rebecca’s duress, not as an independent ground for relief under rule 60(b)(6). Todd did not assert, as he now does, that the district court erred in accepting the stipulation without ensuring it was fair and in the best interests of the child. In fact, so far as we can tell, Todd made no mention of district court error, focusing his arguments entirely on Rebecca’s actions.
¶12 In his reply memorandum on the motion to set aside, Todd vaguely stated that “the underlying order represents an extreme departure from the legal norm not otherwise supported by findings as to why such should be the case.” But “a party may not claim to have preserved an issue for appeal by merely mentioning an issue without introducing supporting evidence or relevant legal authority.” Pratt v. Nelson, 2007 UT 41, ¶ 15, 164 P.3d 366 (quotation simplified). This statement—and similar statements peppered throughout his pleadings below—was not specific enough to alert the district court that it needed to consider the court’s own entry of an allegedly inequitable decree as a basis to set aside. In that same reply, Todd broadly discussed a variety of cases where courts had considered grounds to fall under rule 60(b)(6). His discussion included general assertions about fairness, but he never clearly articulated the impact of fairness on the rule 60(b)(6) inquiry. Todd never focused on a specific “independent ground” as a basis to set aside the decree but instead attempted to analogize different aspects of his case to aspects of other cases where rule 60(b)(6) was invoked. To the extent that fairness was discussed, the concept was used to urge the court to be flexible and liberal in granting relief under rule 60(b) and to show that Todd had a meritorious defense as required to prevail under rule 60(b). The arguments about fairness were never articulated in such a way that the court would have understood Todd was asserting that the district court’s own alleged error in accepting an unfair stipulation was an independent ground for relief.
¶13 Additionally, Todd did not support the argument with “evidence and relevant legal authority.” See Wolferts, 2013 UT App 235, ¶ 19, 315 P.3d 448 (quotation simplified). He did not engage in any discussion of the parameters of the court’s obligation to examine a stipulation for fairness or the best interests of the child before adopting its provisions in a decree of divorce. Instead, he asserted that the provisions were unfair as a result of the duress to which he was subjected. Indeed, the primary argument on which Todd focused the district court’s attention was that the decree of divorce should be set aside because it was the result of “duress and blackmail” and that duress should fall under the catchall provision of rule 60(b)(6) rather than the fraud, misrepresentation, or other misconduct provision of rule 60(b)(3).
¶14 Moreover, it is apparent that the district court did not, in fact, understand Todd to be making the argument he now makes on appeal. Cf. Pratt, 2007 UT 41, ¶ 24, 164 P.3d 366 (concluding that even though an argument was untimely and the court did not have the benefit of the other party’s response, it was “preserved for appeal when the district court was given notice of the issue … and when the court in response to such notice made a specific ruling on the issue” (emphasis added)). Instead, the court construed Todd’s arguments about unfairness as a response to Rebecca’s assertion that he lacked a meritorious defense and discussed concerns about unfairness only in the context of addressing that issue.[1]
¶15 In short, simply expressing concerns about the fairness of the decree of divorce and whether it provided for the child’s best interests did not present the “independent ground” of district court error in such a way that the district court had an opportunity to rule on whether any alleged court error justified setting aside the parties’ decree of divorce. See Wolferts, 2013 UT App 235, ¶ 19, 315 P.3d 448. Accordingly, the question of whether that independent ground could support a motion to set aside under rule 60(b)(6) is not preserved for our review.[2]
CONCLUSION
¶16 Because Todd has not preserved the argument he raises on appeal and has not argued that any exception to the preservation rule applies in this case, we decline to review it. We therefore affirm the district court’s determination that the grounds for Todd’s motion to set aside fell under rule 60(b)(3) of the Utah Rules of Civil Procedure and that his motion was therefore untimely.
[1] In addition to asserting that Todd’s motion was untimely, Rebecca argued that he lacked a meritorious defense because he could not prove that the terms of the settlement were unfair.
[2] Todd does not assert that any exception to our preservation rule applies to his argument. See generally State v. Johnson, 2017 UT 76, ¶ 47, 416 P.3d 443 (“When an issue has not been preserved in the trial court, but the parties argue that issue on appeal, the parties must argue an exception to preservation for the issue to be reached on its merits.”).
I have studied this question throughout my career, and I’ve been a divorce and family lawyer for 25 years. If there is one family law question to which I know the answer, it is this one.
Eventually, a rebuttable presumption of 50–50 custody will become the norm. That change is happening now, although I am appalled at how slowly.
There are many reasons why a 50-50 custody award is not the presumptive/default physical child custody award. I will list those reasons in the order of what I believe to be the strongest to the weakest. I do not mean that the strength of an argument depends upon how intellectually rigorous and honest the reason is. I mean how entrenched the reason is in society and in the legal culture.
#1. Nothing else comes close: sexism. Any knowledgeable and experienced divorce and family law attorney will tell you that although sexism is not as strong as it once was a generation or two ago, it is still alive and kicking the butts of fit fathers who are denied the joint equal physical custody of their children. It is as shocking as it is terrifying as it is disgusting to see mothers and their lawyers make sexist arguments that the court’s still accept. Such as?
Children, especially young children, need to spend more time with their mother than with their fathers.
Women are born nurturers, more naturally competent parents than are men.
Children are more strongly bonded to their mothers than to their fathers.
(This one is particularly insulting) men who want more than minimal custody and parent time with their children do so to avoid having to pay child support.
While it is true that some men don’t really want to be that involved in their children’s lives, yet seek sole or joint custody simply to reduce the amount of child support they have to pay without having any intention of engaging in the level of responsibility that a joint equal physical custodian should, to suggest that men in general want joint custody solely or primarily to save money is a pretty damn cynical view of men, not to mention a pretty damn false one. Think about it. If men wanting joint custody are motivated by greed, does that mean that women wanting sole or primary physical custody of their children are motivated by greed as well?
We all know plenty of women who oppose a joint custody award and seek a sole or primary custody award precisely for the financial benefits primary or sole custody confers. It is unfair to presume that either mothers or fathers inherently seek a child custody award that is the most financially advantageous at the expense of their children’s emotional and physical well-being.
#2. Unscientific and pseudoscientific principles (that are usually, though not always, invoked to mask the blatant sexism). Such as?
Children should not be going back and forth like ping-pong balls between their parents’ respective homes
There is some truth to this, but only under certain circumstances. The way I explain it to my clients and to legal professionals with open minds (few though there are currently) is that joint equal custody doesn’t benefit children if the parents live so far away from each other that the children don’t have access to the same group of friends and other familiar surroundings and resources.
If mom and dad live many miles apart, the kids end up having no friends in either mom’s neighborhood or dad’s neighborhood. Here’s why: they are only in mom’s neighborhood half the time and only in dad’s neighborhood half the time. that makes it hard to make friends in either neighborhood. And so the kids often end up with no friends in either neighborhood. Certainly no close friends. They don’t go to church with the same kids on the weekends. While they may go to one school, if that school is in one parent’s neighborhood, then the kids don’t do anything with their friends after school on the days and weeks when they are with the other parent.
Some parents and lawyers and judges think that the solution to this problem is having the children go to a school centrally located between moms and dads house. this almost never works well. the kids may have friends at school, but because they do not live in the neighborhood without school is located, their friendship is limited to the time they spend at school.
Joint equal physical custody works best for children when the parents live within walking distance of each other, when the parents reside in the same neighborhood and school district and parish. Yet even when these circumstances exist, I’ve seen courts that still refuse to award of joint equal custody claiming that going back and forth between moms and dads house is a problem in itself, not a symptom of parents who live too far apart.
joint equal custody makes it hard for kids to follow two different sets of rules in each parent’s home. What utter bilge. Sure, if the environments and rules in each parent’s home are so radically and catastrophically different from one another as to do the children harm, then perhaps joint equal custody can’t work. But such a scenario just doesn’t arise often enough to dismiss the idea of joint equal custody out of hand on this basis. The majority of parents are going to agree upon things like diet and bedtimes, and those parents who aren’t in total agreement will likely have rules and routines that don’t differ enough to do the children harm (such as bedtime at mom’s being 8:30 p.m. and bedtime at dad’s being 9:00 p.m., or mom may eat out with the kids more often than dad does— these are differences that are going to do the children long-term damage, if any damage at all).
There is one legitimate reason why every child should not be in a 50–50 physical custody arrangement: when the circumstances of the parents and children are not conducive to a joint equal physical custody (50-50″) award.
Sometimes the circumstances of one or both parents makes joint equal physical custody more trouble than it’s worth, of no benefit to the child, or even deleterious to the child.
Work schedules and distance between the parents’ respective homes may not be conducive to the exercise of joint equal physical custody.
If a parent is unfit to exercise custody of a child, then that’s not really a problem with joint equal physical custody, but a matter of the parent’s incompetence. Holding father to a burden of proof that presumes them to be unfit until proven otherwise, is patently irrational, unconstitutional, and fundamentally unfair and gratuitously harmful to children and fathers alike.
Utah Family Law, LC | divorceutah.com | 801-466-9277
DUANE CROFT KNOWLES, Appellant, v. CELIA FERN KNOWLES, Appellee.
Opinion
No. 20200032
Filed April 7, 2022
Second District Court, Farmington Department
The Honorable David R. Hamilton
No. 174700123
Julie J. Nelson and Alexandra Mareschal, Attorneys for Appellant
Emily Adams and Sara Pfrommer, Attorneys for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES RYAN M. HARRIS and DIANA HAGEN concurred.
CHRISTIANSEN FORSTER, Judge:
¶1In 2016, Duane Croft Knowles and Celia Fern Knowles separated after nearly thirty years of marriage. During their separation, the district court awarded Celia1 temporary alimony and, after a bench trial, entered a final alimony award. Duane now appeals those awards, arguing the court abused its discretion in (1) declining to award him credit for purported overages he paid in temporary alimony, (2) calculating the parties’ expenses in determining the final alimony award, and (3) selecting the date to value the retirement accounts. We affirm in part and reverse in part and remand.
BACKGROUND2
¶2Duane and Celia were married in December 1989. They remained married for twenty-nine years, during which time they had six children. For the duration of the marriage, Duane worked as an optometrist and supported the family financially.
¶3In 2016, Duane and Celia separated. At that time, only two of the children were minors.3 Upon the parties’ separation, Celia remained in the marital home, which was paid off. Each month Duane used his income to pay the family’s bills and any remaining funds were then divided between the parties; in the initial months following their separation, Celia received $200 more per month than Duane, after which the excess was split 50/50. After several months of this informal arrangement, both parties filed motions for temporary orders, supported by financial declarations.
¶4In Celia’s financial declaration, she reported a nominal monthly income of $103.52 from her massage therapist side business but requested the court impute the minimum wage for full-time employment to her in the amount of $1,257 per month. Celia also declared that her monthly financial needs were $8,476.91. This total included, among other things, orthodontic expenses for one of the parties’ minor children and a monthly donation for tithing to Celia’s church.
¶5In Duane’s financial declaration, he reported a net monthly income of $9,671.08 from his job as an optometrist. Duane calculated his monthly expenses as $5,054.70 and included in those expenses a line-item for a tithing donation to his church.
¶6 The competing motions for temporary orders were reviewed before a commissioner in September 2017. Duane was ordered to pay Celia $3,797 in alimony each month, beginning in July 2017. The commissioner noted that “the issue of retroactive alimony prior to July 1, 2017,” would be “reserve[d]” and that Duane “shall receive credit for amounts he has paid [Celia] or on behalf of [Celia] during this time.” In calculating temporary alimony, the commissioner adjusted the stated monthly expenses for both parties, including eliminating the claimed monthly expense for tithing. The commissioner did not exclude, however, Celia’s claimed orthodontic expenses for the parties’ minor children.
¶7 Duane objected to the commissioner’s alimony recommendations, arguing that the commissioner had improperly calculated the parties’ needs by failing to “equalize the parties[’] standards of living” and “by failing to consider the parties[’] historical standard of living.” In addition, he argued that the temporary award should cover only the actual expenses of the parties and not “projected expenses” such as possible orthodontics for the parties’ ten-year-old child who did not yet have braces.
¶8Following briefing and argument on Duane’s motion, the district court sustained the commissioner’s recommendations as to the parties’ temporary expenses and incomes. In particular, the court noted that including the orthodontic expenses in calculating Celia’s needs “was not erroneous” because “[e]ven if orthodonti[cs] is not presently involved, it could occur in the immediate future.” However, the court agreed with Duane that some of Celia’s expenses were inflated and that alimony should be adjusted accordingly. The court then reduced the temporary alimony award from $3,797 to $2,809, with payments set to begin on July 1, 2017, the same day set by the commissioner in his initial order.4
¶9In 2019, two years after Duane filed for divorce, the parties went to trial. During the course of the two-day bench trial on financial issues, both parties testified, along with their respective experts.
¶10 Duane first challenged the district court’s award of temporary alimony, arguing that Celia’s financial declarations were not adequately supported and that she had failed to prove the marital standard of living and her actual needs. In support of this argument, Duane called as an expert a forensic accountant to testify regarding the parties’ marital standard of living. The expert first testified that prior to the parties’ separation in 2016, the monthly marital expenses for both parties together were $9,338, or $4,669 each. He then explained that Celia had requested $8,476.91 in her financial declaration but had been spending only around $4,755.02 per month. He also opined that, based on the parties’ historical spending, tithing donations to their church were part of the marital standard of living.
¶11In addition to challenging the amount of alimony, Duane asked the court to credit him $64,000 for what he characterized as an “overage” he paid in temporary alimony. In essence, Duane argued that the temporary alimony figure he had paid for approximately two years had been too high and asked the court to adjust that figure retroactively and award him the difference between what he had paid and what he should have paid. He argued that Celia had “intentionally dissipated the marital estate by overspending,” “over-inflat[ing] her needs,” and “refusing to work” despite having “the ability to work full time.”
¶12 Following trial, the district court entered its findings of fact and conclusions of law. Based on its analysis of the parties’ income and needs, the court awarded Celia $2,770 in permanent alimony per month moving forward.
¶13 In reaching that amount, the court first analyzed each party’s income. It calculated Duane’s monthly net income at $9,368, after averaging the prior four years of his annual income as stated in his tax returns. The court also imputed a monthly net income of $1,874 to Celia, finding that “she is voluntarily underemployed” and “capable of employment.”
¶14 The court then analyzed the needs of each party. It first declined to “award any donations or tithing for either party.” It reasoned that the tithing payments were “a religious preference” and “not a necessary living expense.”
¶15 Next, after examining Celia’s multiple financial declarations and other relevant evidence, the district court found that her post-divorce living expenses would be $5,382 per month. To reach this amount, the court excluded some of Celia’s claims for expenses, finding the supporting evidence “lacking, remote in time[,] and remote in detail.” But the court also added additional expenses for a future mortgage and for health insurance, which had not been included in Celia’s financial declarations.
¶16Finally, the court examined Duane’s financial declarations and supporting evidence and determined that his monthly post-divorce living expenses, excluding child support, would be $5,833. In so doing, the court excluded only “the expense of donations,” finding Duane’s other expenses “to be appropriate.”
¶17 After setting the amount of permanent alimony, the district court addressed both parties’ claims regarding alimony arrears and overpayments. Without addressing the merits of the parties’ arguments, the court summarily concluded that both parties had failed “to provide or to carry the weight of the evidence in their respective favor” and declined to credit Duane for any overpayments of temporary alimony.
¶18With respect to the parties’ retirement accounts, the court awarded each party “one-half of the value of the marital portion of the retirement accounts, . . . with a valuation date of August 2, 2019,” the date on which the court announced its oral ruling.
¶19 Following the district court’s oral ruling, Duane filed a document requesting further clarification on a number of issues, including, as relevant here, his taxpayer filing status and the valuation date of the retirement accounts. As to his taxpayer filing status, Duane noted that his “ability to pay should be reduced by $224/month as his taxable income will be higher” because of the change in his filing status following the divorce. As to the valuation date of the retirement accounts, Duane noted that the division date “should be the date of separation” and not the date of divorce.
¶20 In response to Duane’s request, the district court issued an order rejecting both arguments. First, it declined to change Duane’s taxpayer filing status, reasoning that Duane had not provided sufficient evidence to rebut its previous ruling. Second, it declined to change the valuation date of the retirement accounts. It acknowledged that “typically the date of division of retirement accounts is the date of divorce” but, due to the “totality of the circumstances” presented in this case, determined to use August 2, 2019 as the “date of division,” noting that the parties had not made “sufficient argument about a different division date being used.”
ISSUES AND STANDARDS OF REVIEW
¶21 Duane now appeals and raises three issues for our consideration. First, he contends that the district court erred “by failing to correct for overage paid in temporary alimony.” “District courts have considerable discretion in determining alimony and determinations of alimony will be upheld on appeal unless a clear and prejudicial abuse of discretion is demonstrated.” Burggraaf v. Burggraaf, 2019 UT App 195, ¶ 26, 455 P.3d 1071 (quotation simplified).
¶22 Second, Duane contends that the district court erred in calculating the amount of the permanent alimony award. Specifically, he argues that the court miscalculated the parties’ expenses by failing to include the tithing contribution each paid to their church, by “including an ongoing expense for orthodonti[cs],” and by “miscalculating [Duane’s] tax obligation.” We review a district court’s alimony determination for an abuse of discretion. See id. In determining alimony, a court exceeds its discretion if its alimony award “lacks a reasonable basis.” Redden v. Redden, 2020 UT App 22, ¶ 15, 461 P.3d 314.
¶23 Third, Duane contends that the district court erred by “setting an arbitrary valuation date for the retirement accounts rather than the date of separation.” “The [district] 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.” Rayner v. Rayner, 2013 UT App 269, ¶ 4, 316 P.3d 455 (quotation simplified). “Thus, we will not disturb a court’s distribution of marital property unless it is clearly unjust or a clear abuse of discretion.” Goggin v. Goggin, 2013 UT 16, ¶ 44, 299 P.3d 1079 (quotation simplified).
ANALYSIS
I. Overpayment of Temporary Alimony
¶24 Duane first contends that the district court abused its discretion by failing to credit him for what he considers to have been excess payments made to Celia pursuant to the court’s temporary alimony order. Duane argued below, and argues now on appeal, that the temporary alimony award was erroneous because Celia obtained it by submitting inflated and unjustified need claims that the district court rejected after hearing the evidence at trial. Specifically, he argues that the temporary award underestimated the amount of income to be imputed to Celia, relied on an inflated estimate of Celia’s needs, and included a triple award for the children’s medical expenses.
¶25 Celia first responds that Duane failed to preserve this issue below, with the exception of his claim regarding the triple award of medical expenses. She then asserts that Duane’s argument fails on the merits because his comparison of the temporary and final awards fails to account for changes in her circumstances during the two-year period between separation and trial. We turn first to the preservation argument and then address the merits.
A. Preservation
¶26 Celia asserts that Duane’s overpayment argument regarding her expenses and income is unpreserved because the argument Duane raised in the district court is based on an “entirely distinct legal theory” from the argument he raises on appeal. (Quotation simplified.) In the district court, Duane argued that he paid too much in temporary alimony because Celia had “dissipated the marital estate by overspending” and had refused to work. Celia asserts these arguments are distinct from the argument Duane raises here, which is that the temporary alimony award was overinflated because of adjustments to Celia’s alimony award made by the district court at the time of trial. We disagree with Celia’s characterization of the arguments and conclude that the issue was properly preserved.
¶27“Our preservation requirement is well-settled: we require parties to have raised and argued before the district court the issue that they raise and argue before us on appeal, and if a party does not, it has failed to preserve the issue.” True v. Utah Dep’t of Transportation, 2018 UT App 86, ¶ 23, 427 P.3d 338 (quotation simplified). “An issue is preserved for appeal when it has been presented to the district court in such a way that the court has an opportunity to rule on it.” State v. Rogers, 2020 UT App 78, ¶ 20, 467 P.3d 880 (quotation simplified). A party asserting error on appeal must have raised the issue before the district court “specifically, in a timely manner, and with support by evidence and relevant legal authority.” True, 2018 UT App 86, ¶ 24. “New arguments, when brought under a properly preserved issue or theory,” may be properly considered on appeal. Id. ¶ 32 (quotation simplified). “Such arguments include citing new authority or cases supporting an issue that was properly preserved.” State v. Johnson, 2017 UT 76, ¶ 14 n.2, 416 P.3d 443.
¶28 The arguments Duane raised repeatedly in the district court are, in fact, based on the same facts and legal theories as those he raises here. In the proceedings on temporary orders, Celia filed a financial declaration stating that her monthly need was $8,476.91, which was only $1,000 short of Duane’s entire net income. At that time, Celia was working a de minimis amount and had no expenses for health insurance or housing since she was residing in the paid-off marital home and receiving health insurance through Duane’s employment. The commissioner reduced some of Celia’s claimed expenses and imputed income to her based on full-time work at a minimum wage income and then recommended that Duane pay temporary alimony in the amount of $3,797 per month.
¶29 Duane objected to the commissioner’s recommendation, arguing that Celia’s requested amount far exceeded the marital standard of living. Duane requested that the district court immediately correct the inflated temporary alimony because he was concerned that the court would decline to correct it retroactively. The court agreed that some of Celia’s expenses were inflated and reduced the temporary award to $2,809. Dissatisfied with the court’s resolution of the issue, Duane filed a petition for interlocutory appeal with this court, again making the argument that the temporary alimony award was excessive because Celia’s claimed expenses were excessive. His petition was denied.
¶30 Having been only partially successful in urging the district court to reduce the temporary award before trial, Duane again challenged the temporary award at trial. Indeed, Duane maintains that much of his motivation to take the case to trial— rather than to settle out of court—was to have the temporary alimony award corrected. Duane filed a trial brief in which he argued that he should be credited for any overage he had paid in temporary alimony and that temporary alimony should be “reduced retroactively as it was incorrectly applied.” Specifically, Duane argued that Celia had “over-inflated her needs” and “misled the [c]ourt with her financial declaration.” After the district court announced its preliminary oral ruling, Duane argued in post-trial briefing that the court should award him a judgment for “alimony that was over-paid during the temporary orders.” And at oral argument on the post-trial issues, Duane again argued that “[t]he temporary order created a substantial inequity between the parties” and that he should be given a judgment for the amounts he overpaid. The court noted Duane’s argument but declined to analyze the merits of his arguments or credit him for any overpayment.
¶31 In short, Duane repeatedly argued below that the temporary alimony award was wrong for two broad reasons. First, he claimed that it was wrong due to Celia’s allegedly overstated expenses. Second, he claimed that it was wrong due to Celia’s allegedly understated earning capacity. Duane sought credit for these overages based on his argument that the evidence presented at trial failed to support the temporary award. This is the same argument that Duane advances here. The fact that Duane now illustrates the issue by pointing to the discrepancies between the temporary alimony order and the final alimony award (and noting the adjustments made to the final award to account for Celia’s increased expenses for housing and health insurance) does not change the essence of Duane’s argument. We therefore conclude that Duane adequately preserved the issue for our consideration.
B. Temporary Awards
¶32 Utah Code section 30-3-3(3) authorizes an award of temporary alimony “to provide money, during the pendency of the action, for the separate support and maintenance of the other party and of any children in the custody of the other party.” Utah Code Ann. § 30-3-3(3) (LexisNexis Supp. 2021). Although orders providing for temporary support are operative during the pendency of the divorce proceeding, they are not final orders from which an appeal of right may be taken. Rather, as interlocutory orders, they are subject to continuing review and modification by the district court until the issuance of a final judgment. See IHC Health Services, Inc. v. D & K Mgmt., Inc., 2008 UT 73, ¶ 27, 196 P.3d 588 (recognizing the broad discretion of district courts to reconsider and modify interlocutory rulings before final judgment).
¶33 Although district courts have discretion in fashioning temporary orders, temporary alimony is subject to the same requirements as a regular alimony award. See Dahl v. Dahl, 2015 UT 79, ¶¶ 85–98, 459 P.3d 276 (describing factors applied to temporary alimony and concluding the district court did not abuse its discretion in denying temporary alimony when wife failed to provide documentation of her needs). As is the case with awards of permanent alimony, temporary alimony awards must “follow[] logically from, and [be] supported by, the evidence.” Bakanowski v. Bakanowski, 2003 UT App 357, ¶ 13, 80 P.3d 153 (quotation simplified).
¶34 Because of their nature, however, temporary awards are often based on limited evidence. Typically recommended by a domestic relations commissioner after a brief proffer hearing based largely on the financial declarations submitted by the parties, see Utah R. Jud. Admin. 6-401(2)(H), such temporary orders may result in awards that are not supported by the more substantial evidence presented at a later trial. For this reason, district courts have the authority to revisit temporary orders and, if warranted, retroactively modify them in the final divorce decree. See Utah Code Ann. § 30-3-3(4); id. § 30-3-5(4); id. § 78B12-112(4) (2018); Miner v. Miner, 2021 UT App 77, ¶ 101, 496 P.3d 242; McPherson v. McPherson, 2011 UT App 382, ¶¶ 12, 17, 23, 265 P.3d 839.
¶35 This court’s opinion in McPherson illustrates this point and is instructive here. There, husband appealed the district court’s denial of his request for a retroactive modification of his temporary alimony obligation. McPherson, 2011 UT App 382, ¶ 10. The court had based its initial temporary award on the recommendation of the domestic relations commissioner who, in turn, had based it on husband’s salary at the time of the initial support hearing. Id. ¶¶ 3, 5. When the court entered the temporary award, it was unaware that husband had since been fired from his job. Id. ¶ 5. Husband thereafter moved to amend the temporary order to recalculate his child support and alimony obligations in accordance with his then-decreased salary. Id. ¶ 7. The court denied the motion, reasoning that husband’s decreased salary was likely the result of his voluntary underemployment. Id. Following a bench trial, however, the court reversed course, finding that husband was not voluntarily underemployed. Id. ¶ 19. It therefore reduced husband’s future support obligations. Id. But it nevertheless denied husband’s request for a retroactive modification of his temporary support obligations, reasoning there was “no basis in law, fact, or equity to retroactively reduce the amounts.” Id. (quotation simplified).
¶36 On appeal, this court reversed and remanded with instructions for the district court to modify the temporary alimony award retroactively. Id. ¶ 24. While recognizing the considerable discretion district courts possess in determining alimony, we emphasized that such awards must be supported by an explanation based on the evidence. Id. ¶ 23. Because the temporary alimony award was based on the erroneous assumption (later rejected by the district court) that husband was voluntarily underemployed, there was no justification for the higher award. Id. ¶ 21. This court held that the district court abused its discretion by failing to retroactively modify husband’s temporary support obligations, reasoning that “[e]ven if the commissioner’s recommendations seemed well founded at the time of the hearings, once the premise of that decision was proved inaccurate, there was no reasoned basis to impose temporary support obligations that were mathematically impossible for [h]usband to pay.” Id. ¶ 23.
¶37Like the husband in McPherson, Duane argues the district court abused its discretion when it failed to credit him for temporary alimony payments that were higher than the amount the court determined was appropriate after hearing the evidence at trial. We therefore consider whether the district court’s refusal to modify the temporary alimony award was supported by its factual findings and rulings at trial.
¶38Duane identifies $62,627 in alleged discrepancies between the district court’s award of permanent alimony based on the trial evidence and its award of temporary alimony based on the proceedings before the commissioner. These consist of discrepancies between (1) Celia’s imputed income ($16,255 in overage); (2) Celia’s needs ($38,250 in overage); and (3) the amount awarded for medical expenses ($8,152 in overage). While Celia argues that these discrepancies are readily explainable, the district court offered no such explanation. Despite Duane’s request for reimbursement of what he argued was excessive temporary alimony, the court summarily declined to reconcile the differences, stating only that “neither party submitted sufficient evidence for arrears or overages.” But the district court’s summary refusal to consider the merits of the issue on the basis of insufficient evidence does not suffice, because the evidence supporting Duane’s request for reimbursement of asserted overages was the very same evidence that supported the court’s award of permanent alimony.5 Indeed, the court’s explanation for its refusal to address the discrepancies between the temporary and final award is no more sufficient than the McPherson court’s conclusory statement that there was “no basis in law, fact, or equity to retroactively reduce the amounts.” See 2011 UT App 382, ¶ 19 (quotation simplified). We therefore turn to the alleged discrepancies Duane identifies.
Celia’s Imputed Income
¶39 An alimony award must account for the ability of the recipient spouse to support themselves. See Utah Code Ann. § 30-3-5(9)(a)(ii) (LexisNexis Supp. 2021). At the temporary stage, the court imputed $1,225 in net income to Celia. But at trial, the court agreed with Duane and found that Celia was “voluntarily underemployed” and “capable of employment.” Based on the testimony presented at trial, the court imputed to Celia $1,874 per month in net income, which represented an increase of $649 per month over the amount imputed in the temporary award. And the court made no finding suggesting that Celia could not have earned that amount during the pendency of the proceedings, or otherwise justifying the discrepancy between the temporary order and its findings at trial. The court should have considered whether Celia had the same earning capacity during the separation.
Celia’s Needs
¶40 An alimony award also must account for the financial condition and needs of the recipient spouse. See id. § 30-3-5(9)(a)(i). At the temporary stage, when Celia was residing in the paid-off marital home and receiving health insurance through Duane’s employment, the court found that Celia had monthly expenses (needs) of $5,370. After imputing a monthly net minimum wage of $1,225 to Celia and giving Duane credit for $1,336 in monthly child support payments, the court entered a temporary alimony award of $2,809 per month.
¶41 At trial, however, the court found that evidentiary support for Celia’s expenses was “lacking, remote in time,” “remote in detail,” and “artificial.” It therefore disallowed many of her claimed expenses. It then added a monthly mortgage expense of $1,015 to account for the fact that Celia would be required to refinance the marital home to cash out Duane’s equity. It also added a monthly health insurance expense of $503 because Celia would no longer be eligible for insurance through Duane’s employer after the divorce. Following these adjustments, the court made a finding that Celia’s monthly post-divorce expenses were $5,382. Excluding the post-divorce adjustments for housing and health insurance, the permanent award based on the trial evidence was $1,530 per month less than the temporary award or a total of $38,250 over the twenty-five months that Duane paid support pursuant to the temporary order. Duane argues that the district court erred in failing to award him this overage.
¶42 Celia argues that this court should reject Duane’s argument because he failed to marshal the evidence supporting the district court’s permanent award. She argues that Duane disregarded the evidence supporting her need for support after “the collapse of her 27-year marriage where she was largely a stay-at-home parent.” But marshalling is not required, because Duane has not raised a sufficiency argument or challenged the district court’s factual findings. And Celia has not explained why the length of the marriage or her status as a stay-at-home parent justifies the discrepancies in the amount of the temporary and final awards, since these issues are properly considered in determining the length of the alimony award and the level of income to impute to the receiving spouse. See id. § 30-3-5(9)(a)(ii), (iv).
¶43 Celia next argues that Duane is committing a logical fallacy of false equivalence by comparing the temporary and final alimony awards because there are significant differences between the two kinds of awards. She posits that a spouse’s needs, ability to produce income, and support of minor children may change from the time a court orders temporary alimony to the time of the final award and suggests that this is the explanation for the discrepancies here. She asserts that she was able to earn more income as time went on because her children were growing and their medical needs had decreased. She therefore suggests the district court determined she could earn more after the divorce was final than during its pendency. A court could conceivably find that a party is able to earn more at the time of trial than at the time of temporary orders. But the court made no such finding here, and we note that at no point during the temporary proceedings did Celia argue that the children’s medical needs prevented her from working. Indeed, the commissioner imputed her minimum wage for full-time work, and the district court found that Celia was voluntarily underemployed and flatly rejected her argument that she could not work because of the children’s medical needs.
¶44Finally, Celia argues that Duane’s line-by-line comparison
of the temporary and permanent awards is misleading because an alimony award is based on a more generalized determination of the amount necessary for both parties to maintain the standard of living that they enjoyed prior to the divorce. Because the temporary award ($2,809) was only $39 higher than the final award ($2,770), Celia maintains that the court’s failure to make an adjustment could not have been an abuse of discretion. But this argument ignores the adjustment made to the temporary award to account for mortgage and health insurance expenses.6 And more importantly, it is at odds with the district court’s express finding that evidentiary support for Celia’s claimed expenses was “lacking, remote in time,” “remote in detail,” and “artificial.” The court should have considered the merits of Duane’s arguments regarding these discrepancies to determine whether a modification of the temporary alimony award was in order.
Medical Expenses
¶45 Duane also argues that the temporary alimony award erroneously included a triple award of medical expenses. The temporary orders awarded Celia approximately $400 per month for medical expenses for the parties’ children, as well as half the funds in the parties’ health savings account (HSA). In addition, the temporary orders required that Duane pay for half the children’s medical costs. Duane reasons that Celia should not have been awarded the $400 per month for medical expenses and half of the HSA account, because he was already required to pay for half of the children’s medical costs. And he argues this inequity was exacerbated at trial when the court awarded Celia an additional lump sum for orthodontic expenses and miscellaneous out-of-pocket medical expenses. Duane seeks a credit in the total amount of $8,152.
¶46 Celia disputes Duane’s claim, arguing that Duane has failed to demonstrate that the money she was awarded for medical expenses exceeded the actual needs of the family. She also points to the district court’s finding that she had established the amount of the medical expenses with receipts and testimony not refuted by Duane, and that the award was to be paid from the HSA, not in addition to it.
¶47Duane responds that Celia is confusing the district court’s award for medical expense arrearages with the ongoing expenses included in calculating Celia’s need. He explains the court included approximately $400 per month in medical expenses in calculating Celia’s expenses, awarded Celia half the HSA account, and then duplicatively ordered Duane to pay for half the children’s medical expenses during the temporary orders period. After trial, Celia was awarded $150 per month in health care expenses and Duane was awarded the entire HSA amount. As was the case with Duane’s claim to recover overages associated with Celia’s allegedly inflated expenses and underemployment, the district court did not engage with Duane’s arguments that the temporary alimony award was $541 too high, stating only that it “had previously ruled that [Celia] is entitled to an award of medical expenses” and that it would “not modify its previous ruling.” There was no legal justification for the court’s refusal to examine the merits of Duane’s claim.
Remand
¶48Temporary support orders are interlocutory in nature and therefore subject to continuing modification by the district court through the date of the final decree. Because they are often based on proffers that may differ from the actual evidence presented at trial, such temporary orders may result in awards that are not supported by the evidence presented at a later trial. For this reason, district courts have not only the authority, but the obligation, to revisit temporary orders when requested and, if warranted, to “true-up” or retroactively modify them to comport with the evidence.
¶49While district courts retain broad discretion in fashioning support orders in divorce proceedings, they are obligated to analyze a timely claim by a party seeking to true-up a temporary support order with the evidence received at trial. This true-up process consists of a two-part exercise. If a true-up is timely requested, the court should first make factual findings relevant to the temporary award to determine whether it was supported by the evidence. If the court finds, after hearing all the evidence presented at trial, that the temporary order was inappropriate, then the court should proceed to the second step: determining whether a true-up is warranted in the case at hand. In many cases, a party who has demonstrated that a temporary order was inappropriate and unsupported by the more comprehensive evidence presented at trial will be entitled to a retroactive modification of that order. See McPherson v. McPherson, 2011 UT App 382, ¶¶ 21–24, 265 P.3d 839. But in some cases, a court may find that such retroactive modification is inappropriate or inequitable, notwithstanding an inaccuracy or error in the temporary order. In making the determination whether to order a true-up, a court should identify the considerations bearing on its decision and should enter careful findings explaining the basis for that determination.
¶50Here, Duane was entitled to have the district court engage on the merits in determining whether he was entitled to a true-up. As we have discussed, Duane repeatedly asked the district court to consider his contention that the temporary alimony award was too high and timely sought an offset based on the evidence presented at trial. At trial, the court concluded that Celia should be imputed more income than was included in calculating the temporary alimony. It also found that Celia’s claimed expenses were lacking in evidentiary support. But it failed to analyze, explain, or reconcile the discrepancies between the numbers used to calculate the temporary and final alimony orders. It similarly failed to engage in or analyze Duane’s claim that both the temporary and final alimony orders had duplicated the award for the children’s medical expenses. This was an abuse of its discretion. We therefore remand the matter to the district court to complete the first step of the true-up process by making appropriate factual findings relevant to the temporary award to determine whether it was supported by the evidence. If the court finds the temporary order was overinflated, it must then determine whether a true-up is warranted. And it should also consider Duane’s claim that both the temporary and final alimony awards included a triple award of the children’s medical expenses.
II. Calculation of the Final Alimony Award
¶51Duane next contends that the district court erred, in three ways, in calculating the final alimony award: (1) it did not consider tithing paid to the parties’ church as consistent with the marital standard of living, (2) it failed to consider Duane’s post-divorce tax bracket, and (3) it included orthodontics as a permanent expense. We address each argument in turn.
A. Tithing
¶52 Duane argues that the district court miscalculated his ability to pay alimony by excluding expenses that it deemed unnecessary. According to Duane, the court analyzed whether the parties’ claimed expenses were “necessary,” rather than whether they were consistent with the “marital standard of living.” (Quotation simplified.) After doing so, it determined that tithing paid to the parties’ church was not a necessary obligation and therefore excluded it from Duane’s list of expenses, thus inaccurately increasing his ability to pay.
¶53 When setting an alimony award, the district court must consider a number of statutory factors, including “the financial condition and needs of the recipient spouse,” “the recipient’s earning capacity or ability to produce income,” and “the ability of the payor spouse to provide support.” Utah Code Ann. § 30-35(9) (LexisNexis Supp. 2021). “Furthermore, the award should advance, as much as possible, the purposes of alimony by assisting the parties in achieving the same standard of living they enjoyed during the marriage, equalizing the parties’ respective standards of living, and preventing either spouse from becoming a public charge.” Hansen v. Hansen, 2014 UT App 96, ¶ 6, 325 P.3d 864 (quotation simplified).
¶54 In adhering to these principles, this court has described the proper process to be followed by courts when awarding alimony:
First, the court must assess the needs of the parties, in light of their marital standard of living. Next, the court must determine whether the receiving spouse is able to meet [their] own needs with [their] own income. If the court finds that the receiving spouse is unable to meet [their] own needs with [their] own income, the court must then assess whether the payor spouse’s income, after meeting [their own] needs, is sufficient to make up some or all of the shortfall between the receiving spouse’s needs and income.
Redden v. Redden, 2020 UT App 22, ¶ 21, 461 P.3d 314 (quotation simplified). If the court determines after conducting this analysis “that there are insufficient resources to meet the baseline needs established by the marital living standard, the court should then equitably allocate the burden of the shortfall between the parties.” Rule v. Rule, 2017 UT App 137, ¶ 22, 402 P.3d 153.
¶55As an initial matter, the court must assess the needs of the parties not by applying its own sense of which expenses are truly necessary but, instead, by examining whether their claimed expenses are consistent with the standard of living the parties established during the marriage. See id. ¶ 15. This assessment is fact-sensitive and individualized and must be limited to a determination of whether the claimed needs are “based on the parties’ historical standard of living.” See Bakanowski v. Bakanowski, 2003 UT App 357, ¶ 12, 80 P.3d 153; see also Anderson v. Anderson, 2018 UT App 19, ¶ 31, 414 P.3d 1069 (defining “standard of living as a minimum of necessities, comforts, or luxuries that is essential to maintaining a person in customary or proper status or circumstances” and “disavow[ing] the notion that standard of living is determined by actual expenses alone” (quotation simplified)). Indeed, it is not the job of the district court to “appl[y] its own sense of what was reasonable under the circumstances.” See Dobson v. Dobson, 2012 UT App 373, ¶ 29, 294 P.3d 591.
¶56 In comporting with this principle, this court has upheld alimony awards that included unique expenses—even expenses some observers might deem frivolous or unnecessary—where such expenses were consistent with the marital standard of living. See, e.g., Miner v. Miner, 2021 UT App 77, ¶¶ 22, 26, 44, 496 P.3d 242 (awarding receiving spouse, among other things, $1,000 per month for “tennis-related expenses,” $625 per month for “entertainment,” and $5,000 per month for horse care and maintenance where each expense was a historical marital expense supported by the evidence). Moreover, courts may infer that “the parties’ current expenses were based on the marital standard of living when the majority of the expenses in the [payor spouse’s] current financial declaration are identical in amount to those identified as marital expenses in the [receiving spouse’s] current financial declaration.” Eberhard v. Eberhard, 2019 UT App 114, ¶ 48, 449 P.3d 202 (quotation simplified); see id. (finding that receiving spouse’s request for $300 per month for donations and gifts was reasonable “[i]n light of the fact that the court allocated the same amount for each party to spend on donations and gifts”). Accordingly, as long as a party’s claimed expenses are consistent with the marital standard of living, are based on sufficient factual findings, and advance, as much as possible, the purposes of alimony, such expenses should be included in the “needs” calculation.
¶57 The district court did not follow this process here, however. In setting the alimony award, the court did not analyze whether the parties’ tithing payments were an expenditure consistent with the marital standard of living. Instead, the court declined to “award any donations or tithing for either party” based on its finding that “tithing is a donation and . . . not a necessary living expense.” We agree with Duane that in so doing, the court eliminated the expense based on a subjective needs judgment that ignored the requirement that it assess the expense based on how the parties chose to spend and allocate their money while married. See Bakanowski, 2003 UT App 357, ¶ 12. And here, the parties presented evidence that their historical standard of living consistently included paying tithing to their church.7 By failing to assess whether the parties’ expenditures were consistent with the marital standard of living, the court abused its discretion. Accordingly, we reverse the court’s determination on this point and remand for the court to reassess the tithing expense following the process detailed above. The court should make a finding as to whether tithing was included in the parties’ marital standard of living and, if it was, should account for that expense in calculating alimony.8 If inclusion of tithing in the calculation results in a shortfall, the shortfall should be equitably allocated between the parties.
B. Tax Status
¶58Duane next argues that the district court miscalculated his ability to pay because it failed to consider his post-divorce tax obligation. When awarding alimony, the district court must consider “the ability of the payor spouse to provide support,” Utah Code Ann. § 30-3-5(9)(a)(iii) (LexisNexis Supp. 2021), which “includes consideration of the payor spouse’s tax obligations,” McPherson v. McPherson, 2011 UT App 382, ¶ 13, 265 P.3d 839.
¶59The court calculated Duane’s ability to pay by averaging “the last four years” of his net income as listed in his historical tax returns. Based on those returns, the court determined that Duane’s tax obligation would be $24,335.77. In making this determination, the court failed to consider that during each of those years the parties’ filing status was married filing jointly, but that after the divorce Duane’s filing status would—at least for a time—be single or head of household, which would increase his tax obligation. Because the court failed to properly consider Duane’s tax obligation, we reverse and remand for it to recalculate Duane’s post-divorce tax obligations.
C. Orthodontics
¶60 Duane next argues that the district court “mistakenly included $112 per month for orthodonti[cs] in the alimony award.” He contends that this award is improper because (1) no evidence supported an orthodontics expense “that will endure for the entire . . . length of the alimony,” (2) he already pre-paid orthodontics as part of temporary alimony, and (3) he was already ordered to pay half the children’s medical expenses. As previously discussed, the temporary alimony award included $167 per month for orthodontic expenses for the parties’ ten-year-old child who was not yet wearing braces. Duane sought an offset for this amount against the final alimony award and further argued that the alimony award for orthodontic expenses was duplicative in light of the court’s separate order that Duane pay half of the children’s medical expenses. But the district court declined to address Duane’s arguments. Because we have remanded these issues for further consideration, we need not resolve at this juncture Duane’s claims regarding the orthodontics expenses. Rather, we direct the district court to reexamine the issue and articulate the factual and legal basis for its decision.9
III. Valuation Date for the Retirement Accounts
¶61 Finally, Duane argues that the district court abused its discretion by assigning a valuation date to the parties’ retirement accounts that was “long after the date of separation, yet not the date of divorce.”
¶62“Generally, the marital estate is valued at the time of the
divorce decree or trial.” Jacobsen v. Jacobsen, 2011 UT App 161, ¶ 39, 257 P.3d 478 (quotation simplified). However, “a court has broad discretion to value the parties’ marital assets at a different time, such as that of separation, if it determines that the circumstances so warrant.” Petrzelka v. Goodwin, 2020 UT App 34, ¶ 47, 461 P.3d 1134. “[A]ny deviation from the general rule must be supported by sufficiently detailed findings of fact that explain the [district] court’s basis for such deviation.” Rappleye v. Rappleye, 855 P.2d 260, 262 (Utah Ct. App. 1993).
¶63 In this case, the parties separated on May 24, 2016. In 2019, the matter proceeded to a multi-day bench trial that took place between January and April. The court delivered its oral ruling on August 2, 2019. In that ruling, the court addressed the division of the parties’ retirement accounts, ordering that they “be divided . . . 50/50 to each party, effective . . . today, . . . August the 2nd.” Approximately four months later, on December 11, 2019, the court reduced its oral ruling to writing.
¶64Duane contends that the valuation date set by the district court is “arbitrary” and not supported by sufficient findings. He maintains that the court should have set the valuation date as the date of separation. We disagree.
¶65 The valuation date was not arbitrary; it was in fact consistent with the general rule that “the marital estate is valued at the time of the divorce decree or trial.” See Jacobsen, 2011 UT App 161, ¶ 39 (quotation simplified). Here, the court set the valuation date as August 2, 2019—the same date on which it delivered its oral ruling at the close of trial. Because the court followed the general rule of setting the valuation date at the time of trial, it was not required to articulate any additional findings of fact explaining its decision. See id.
¶66 Moreover, the district court was not presented with sufficient evidence to justify a departure from the general rule. After the court’s oral ruling, Duane filed a motion to alter or amend arguing, among other things, that the date of separation should be used as the valuation date because Celia did not contribute to the retirement accounts during the period between the separation and the date of the divorce and therefore should not benefit from the increase in its value.
¶67The court considered Duane’s motion and issued an order upholding its choice of valuation date. It explained that “due to the totality of the circumstances a firm date of August 2nd, 2019 is the date of division of the retirement assets. The Court finds that there was not sufficient argument about a different division date being used.” Given the lack of argument as to an alternative valuation date, the court had no option other than to set the date as the date “of the divorce decree or trial.” See id. (quotation simplified). Duane does not persuade us that the district court acted outside the bounds of its discretion in setting the valuation date for the retirement accounts.
CONCLUSION
¶68 The district court abused its discretion by failing to meaningfully address Duane’s argument that based upon the court’s own post-trial findings, he was entitled to an offset for overages paid in temporary alimony, including offsets arising from the amount of Celia’s imputed income and inflated expenses. The district court similarly erred in failing to consider Duane’s arguments regarding the award of medical expenses, including orthodontics. The district court also abused its discretion when calculating Duane’s ability to pay permanent alimony by excluding tithing as part of the marital standard of living and by underestimating Duane’s post-divorce tax obligation. But we affirm the court’s valuation date for the parties’ retirement accounts. We therefore reverse the district court’s alimony award and remand the matter to the court for reconsideration of the alimony award in accordance with this opinion.